


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Amos, 2012
    ONCA 334

DATE: 20120522

DOCKET: C52012

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Anthony Amos

Appellant

Russell Silverstein and I. Grant, for the appellant

Frank Au, for the respondent

Heard:  April 5, 2012

On appeal from a conviction of first degree murder
    entered by Justice J. Robert MacKinnon of the Superior Court of Justice, sitting
    with a jury, on November 13, 2009.

Watt J.A.:

[1]

The appellant and two others were tried together on a single count of
    first degree murder.

[2]

At the end of the Crowns case, some five or six weeks after the
    proceedings before the jury had begun, the trial judge granted a motion by the
    appellants trial counsel to be removed from the record, dismissed the
    appellants application for an adjournment to permit him to retain new counsel,
    and appointed the appellants former trial counsel as
amicus curiae
.

[3]

The jury found the appellant guilty of first degree murder.  He seeks a
    new trial on the ground that the trial judge erred in refusing his adjournment
    request and appointing as
amicus curiae
the very lawyer in whom the
    appellant had lost confidence and had discharged.

[4]

I would not give effect to either ground of appeal.

The First Ground: Refusal of an
    Adjournment

[5]

Some background is essential to assess the allegation of error in
    refusing the appellants adjournment request.

[6]

When only a handful of witnesses remained in the Crowns case, defence
    counsel advised the trial judge that when the Crowns case concluded he might
    have to withdraw as defence counsel. The appellant confirmed that he wished
    counsel to remain to conduct his defence until the conclusion of the Crowns
    case.

[7]

During his application to be removed from the record, defence counsel
    made it clear that irreconcilable differences had developed between him and the
    appellant. These differences involved instructions from the appellant about the
    conduct of the defence that counsel could not, in good conscience, follow. The
    appellant confirmed that he wished his lawyer to be removed as his counsel. 
    The trial judge made the order.

[8]

The trial judge encouraged the appellant to obtain new counsel. He
    provided the names of senior criminal lawyers, a number of local counsel, and
    contacted Legal Aid to urge them to give prompt consideration to any requests
    involving the appellants case. The trial judge adjourned proceedings to permit
    the appellant to get new counsel.

[9]

The only lawyer the appellant tried unsuccessfully to contact was the
    lawyer who had represented him until the conclusion of the preliminary inquiry.
    He had discharged her because she lacked experience in a murder trial. The
    trial judge ensured that the appellant and his former counsel met. The lawyer
    indicated that she would be prepared to assume carriage of the appellants
    defence, but that she would not be available for at least three weeks and would
    not accept the retainer at Legal Aid rates.

[10]

The
    trial judge dismissed the appellants request for an adjournment of the trial
    proceedings for at least three weeks to permit his former counsel to
    re-acquaint herself with the case and proceed with the defence.

[11]

The
    appellant contends that the trial judge made several errors in exercising his
    discretion to refuse the adjournment request. Among the errors alleged are
    these:

i.        finding
    the adjournment request was a sham in the absence of any supportive evidence
    and in the face of a contrary finding that a genuine breakdown had occurred in
    the solicitor-client relationship;

ii.       unfairly
    requiring the appellant to continue his pursuit of new counsel when he had
    already identified his counsel of choice;

iii.      finding
    that the appellant was sophisticated, thus capable of conducting his own
    defence to a charge of first degree murder; and

iv.      assigning
    too much weight to the interests of the co-accused and failing to consider
    alternate remedies to safeguard their interests.

[12]

In
    my view, the trial judge was entitled to find that the adjournment request was
    a sham.  I say so for several reasons.

[13]

First,
    the appellant, for all practical purposes, ignored the trial judges offers of
    assistance when provided with names of local counsel and senior criminal law
    practitioners. The appellant did not contact Legal Aid about new counsel and
    only spoke to his former counsel when the trial judge summoned her to meet with
    the appellant at the court house.  Instead, the appellant wanted to engage his
    former counsel whom he had discharged because of her lack of experience in
    murder cases.

[14]

Second,
    the appellant had retained trial counsel, whom he sought to discharge, after
    the preliminary inquiry. He retained trial counsel because of trial counsels
    experience in murder cases. The trial judge characterized trial counsels
    conduct of the trial as entirely focused, appropriate and effective.

[15]

Third,
    trial counsel made it clear that underlying the irreconcilable differences
    between counsel and client was the inability of counsel in good conscience to
    follow the appellants instructions. It is a reasonable inference from these
    carefully-chosen words of an experienced trial lawyer that the appellants
    instructions were incompatible with counsels professional ethical obligations.

[16]

Fourth,
    the appellant blamed trial counsel for abandoning him. The truth of the
    matter was that the appellant discharged trial counsel. Failing to adhere to
    instructions that contravene a lawyers ethical obligations cannot be
    characterized as an abandonment of a client by any standard of measure.

[17]

In
    the end, I am satisfied that the combination of factors just described
    constituted an adequate evidentiary foundation for the trial judges finding
    that the appellants request for an adjournment to permit him to continue the
    trial with former counsel whom he had rejected due to lack of experience was a
    sham.

[18]

Further,
    I do not consider the finding that the adjournment request was a sham to be
    inconsistent with the finding that there had been a genuine breakdown in the
    relationship between the appellant and his trial counsel. The appellant
    discharged his trial counsel. In those circumstances, the trial judge was
    entitled to remove counsel from the record when his various resuscitative
    measures failed.

[19]

An
    accused has an unfettered right to discharge his or her legal counsel at any
    time and for any reason. The appellant did so here. The trial judge had no
    authority to interfere with the appellants decision. In particular, the trial
    judge had no authority to force the unwilling appellant to continue to be
    represented by counsel whom he had discharged:
R. v. Cunningham
, 2010
    SCC 10, [2010] 1 S.C.R. 331, at para. 9.

[20]

The
    trial judge had an obligation to ensure that the appellant understood the
    consequences of discharging trial counsel at the conclusion of the Crowns case
    in a joint trial. The trial judge told the appellant about those consequences
    and arranged for him to receive independent legal advice on the same subject.

[21]

The
    appellants unequivocal discharge of trial counsel left the trial judge with no
    real option other than to give effect to the discharge by permitting counsel to
    be removed from the record. The trial judge did have a discretion, however, to
    determine whether to grant the appellant an adjournment to permit him to
    continue the trial represented by counsel whom he had previously discharged due
    to her lack of experience in murder cases. The disagreement between former trial
    counsel and the appellant concerned the appellants instructions to introduce
    certain evidence that former counsel could not in good conscience put forward.
    In these circumstances, the trial judge could reasonably infer that what the
    appellant sought was a mouthpiece, a lawyer the appellant considered would
    follow his instructions unconstrained by ethical considerations. Such a
    conclusion was reasonably available in the circumstances, warranted the
    characterization sham, and was not inconsistent with the earlier finding
    about a genuine breakdown in the solicitor-client relationship between the
    appellant and his trial counsel.

[22]

In
    the end, the trial judge was obliged to consider whether it was in the interests
    of justice to grant the appellants request for an adjournment of a joint trial
    with a jury for at least three, and more likely four to five weeks. He declined
    to do so. After a careful review of his reasons, considered in their entirety, I
    am not prepared to say that his decision reflects error. The trial judge did
    not misapprehend relevant evidence, take into account improper considerations
    or assign unwarranted weight to the relevant factors.

[23]

This
    ground of appeal fails.

The Second Ground: The Selection of
Amicus


[24]

The
    appellant advances a second ground of appeal.  He says that the trial judge was
    wrong to appoint his former trial counsel as
amicus curiae
after that
    counsel had been removed as solicitor of record.

[25]

I
    do not agree.

[26]

At
    first, the appellant
s former counsel resisted the suggestion
    that he act as
amicus
.  The trial judge then
    defined the role of
amicus
to include:

i.        objecting
    to perceived legal errors;

ii.       assisting
    the appellant in drafting a statement of the defence                          position;

iii.      assisting
    the appellant in subpoenaing any defence witnesses;   and

iv.      advising
    the appellant on any questions of law.

[27]

The
    role of
amicus
, as the trial judge
    defined it,
did not include the examination of the appellant or any
    defence witnesses, or a closing address to the jury.

[28]

In
    the end, former counsel agreed to accept the appointment in accordance with the
    proposed terms. Indeed, the
amicus
mandate was expanded at the
    appellants request when the appellant sought further assistance. The trial
    judge made it clear that, if any conflicts arose between
amicus
and
    the appellant, he (the trial judge) would deal with them. None emerged.

[29]

In
    the circumstances of this case, I see no error in the
amicus
appointment. No bright line rule bars the appointment of former counsel as
amicus
.
    An accused need not have confidence in
amicus
with whom she or he has
    no solicitor-client relationship. The description
amicus curiae
is no
    accident. What occurred here did not compromise the actual or apparent fairness
    of the appellants trial, nor did it inhibit the appellant in making full
    answer and defence to the charge. The appellant made it clear that
he
decided, after a weekends reflection, not to testify or call defence witnesses.

[30]

I
    would dismiss the appeal.

Released: May 22, 2012  JL

David
    Watt J.A.

I
    agree W. Winkler C.J.O.

I
    agree John Laskin J.A.


