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Representation - Lawyers - Amicus Curiae. G.S. v. S.B.
In G.S. v. S.B. (Div Court, 2023) the Divisional Court considered whether the appellant had adequate natural justice 'participation' at trial - despite his medical problems, failure to arrange counsel for trial and repeated adjournments. The court granted an order for amicus curiae to assist the father, but did (largely)(see para 21,36) proceed in the absence of the appellant.
In these quotes the court considered an appellate challenge to the amicus:Did the trial judge err in failing to dismiss the amicus?
[34] The father submits that the trial judge erred in failing to dismiss the amicus once it became apparent she was unable to fulfill her role. In the alternative, he says the trial judge should have declared a mistrial. I disagree.
[35] The amicus performed her role of presenting a case for the father and challenging the mother’s evidence. She called two witnesses for the father and cross-examined the mother’s witnesses. She also provided closing submissions to the trial judge.
[36] There can be little doubt that the role of the amicus in this case was challenging. Near the end of trial, the amicus advised the court that there had been a breakdown in her relationship with the father, such that she did not expect he would want her to help with his submissions. The father also appeared at the Zoom hearing to raise his own complaint that the amicus was not on his “side.”
[37] I am not persuaded that the trial judge’s refusal to dismiss the amicus caused a conflict of interest or otherwise interfered with trial fairness. The role of the amicus is not to represent one party: R. v. Kahsai, 2023 SCC 20, at paras. 41-42. As the trial judge expressly clarified in her endorsement appointing the amicus, the amicus was not to take instructions from the father nor was he entitled to terminate her role: G.S. v. S.B., 2022 ONSC 5383. Indeed, the father told the court that the amicus had advised him to retain counsel and had found counsel for him to retain, though he failed to do so. When the amicus raised the breakdown in her relationship with the father, the trial judge stated she could make her own closing submissions, which would not bind the father. The father would also be entitled to make his own submissions.
[38] I have reviewed the cross-examination excerpts that the father says show a conflict in the amicus’s role. They do not demonstrate that the amicus had become an advocate for the mother. Some questions use rhetorical techniques, such as acknowledging a weakness with the goal of eliciting an admission. These questions were not inappropriate. Overall, the father has not shown that the amicus undermined his case or took a position that conflicted with his key strategic choices: see Khasai, at paras. 45-46, and 62. Therefore, this ground of appeal fails. . G.S. v. S.B.
In G.S. v. S.B. (Div Court, 2023) the Divisional Court considered whether the appellant had adequate natural justice 'participation' at trial - despite his medical problems, failure to arrange counsel for trial and repeated adjournments. The court granted an order for amicus curiae to assist the father, but did (apparently: see para 21) proceed in the absence of the appellant:[18] In this case, examining all the circumstances, there was no breach of procedural fairness. It is undisputed that procedural fairness includes an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the trial judge: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 22. As further detailed below, the father had this opportunity.
A. The father was allowed extensive time to retain counsel
[19] First, the father was allowed extensive time to retain counsel. The trial was initially scheduled to start in January 2022. At that time, the father advised the court that he had terminated the retainer of his counsel, who was by then his fourth over the course of the proceedings, and required more time to find new counsel. He also stated he could not self-represent due to health issues. The court granted an adjournment of the trial to May 2022, peremptory to the father. At the commencement of the May trial sittings, the father was ill with COVID-19 so the trial could not be called during the first week. The trial then was not reached in the May sittings and was rescheduled to start in August 2022.
[20] When the trial started on August 2, the father was self-represented. He asked that the trial be postponed due to health issues. The trial judge indicated that the trial would proceed. After receiving an unfavourable evidentiary ruling on the third day of trial, the father stated that he was having an atrial fibrillation and went to the hospital. The trial judge granted an adjournment of the trial to the September 2022 sittings to allow the father to attend to his health needs. She declined to grant him a longer adjournment to retain counsel since, by that point, he had already had eight months (since January 2022) to do so. I note, too, that on the first day of trial, when the trial judge asked the father for an opening statement, he replied that he would “have a lawyer write it,” implying that he had a lawyer available to assist him.
[21] The trial was scheduled to resume on September 19, 2022, now nine months from the original start date in January 2022. The mother brought a motion for the appointment of amicus curiae, which was granted. The trial was therefore rescheduled to allow amicus to prepare and restarted on November 29, 2022. The father did not attend, but the amicus reported that she had had extensive communication with him. She also had communicated with a lawyer who had been assisting him. The amicus relayed the father’s request for another adjournment.
[22] In short, the father was given many months to arrange representation by counsel. He failed to do so but had counsel available to assist him. The trial judge also safeguarded trial fairness by taking the exceptional step of appointing amicus to ensure evidence was called for the father and the mother’s evidence was tested. The denial of a further adjournment for the father to retain counsel did not breach trial fairness.
B. The father’s health did not impede a fair trial
[23] Second, the father’s health did not impede a fair trial. After the father attended the hospital in August 2022, the trial judge adjourned the trial. The father had provided a doctor’s report stating that stress from the court case was causing an extreme elevation of his blood pressure. The report suggested that an adjournment would be helpful “to get his blood pressure under better control as well as to organize legal support for himself.”
[24] However, when the trial resumed in September, the father simply sought further adjournments without new medical evidence nor any explanation as to how further delay would assist him in addressing his health. He at no time requested specific medical accommodations other than to submit evidence in writing (which was permitted) or to request an adjournment. As detailed above, he also did not retain counsel to represent him. In these circumstances, it was not a breach of procedural fairness to proceed with the trial.
C. The father was accommodated
[25] Third, the trial judge granted the father extensive accommodations to facilitate his participation in the trial. For example, the trial judge allowed the father to rely on an 876-page document as his evidence in chief rather than testifying. Contrary to a trial management endorsement requiring him to upload affidavit material in advance, the father uploaded this document to Caselines the night before the trial started. He admitted that he purposely withheld the document from the mother until “the last minute” because he felt it would give the mother an unfair advantage to have the information prior to trial.
[26] The trial judge also allowed the father to record the proceedings, subject to an order that he destroy the recordings after the trial. After the father provided an oral opening statement, he asked to provide a new opening statement in writing and the trial judge agreed. The trial judge similarly allowed him to provide written submissions regarding the admissibility of his expert’s evidence. When the father did not attend the mother’s motion for the appointment of amicus, the trial judge deferred it to the next day to give the father an extra opportunity to attend. These are just some of the many steps the trial judge took to accommodate the father and facilitate his participation.
D. The trial judge did not fail to consider important evidence
[27] The record also does not support the father’s submission that, as a result of his non- participation (or otherwise), the trial judge failed to consider important evidence supporting his position. It is trite law that the trial judge is not required to advert to every piece of evidence. This is particularly true when the trial judge is faced with an 876-page document. In any event, the trial judge either expressly or inferentially rejected the probative value of the points the father highlights on appeal.
[28] For example, the father relies heavily on a report from the Office of the Children’s Lawyer (“OCL”) dated June 6, 2018. The OCL never completed its investigation because the mother was going into treatment for her substance use, but the OCL did provide a report of the information gathered to that point. The father highlights the OCL clinician’s comment that the interaction between the mother and J. “appeared stiff.” The trial judge expressly addressed this at para. 34 of her decision, stating that the clinician’s comments about the father’s abusive communications were “far more concerning” than the statements about the mother’s stiff interactions with J. More importantly, the OCL investigation was incomplete and the report was dated more than four years before the start of the trial. It is clear in the trial judge’s decision that she viewed the mother’s parenting to have improved significantly since that time.
[29] The father relies on a consent order Shelston J. made in 2021 requiring the mother to complete drug testing. A temporary without prejudice consent order has little if any probative value. The trial judge made express findings that, following treatment, the mother had been sober since February 2020 except for a one-day relapse with alcohol in June 2020.
[30] The father also submits that, in view of evidence he provided, the trial judge should not have accepted the mother’s evidence as credible. He relies, for example, on emails from the mother’s father and stepmother in which they question the mother’s version of events and discuss concerns about the mother’s drug use. These emails were from late 2017 and May 2018, again more than four years before trial. The trial judge explained in her decision at para. 37 that the mother’s father, C.B., recognized a change in the mother in early 2020 because she demonstrated a commitment to addressing her issues. The emails from 2017 and 2018 are consistent with the trial judge’s findings.
[31] Contrary to the father’s submission, the trial judge’s decision to ignore “commentary” inserted into the pages and exhibits of the father’s 876-page document did not cause unfairness. The trial judge did not strike the material from the record, but said she would disabuse herself of the commentary that did not constitute admissible evidence. The commentary in many cases was argument, which is not appropriate in a document setting out the father’s evidence. The trial judge also admitted into evidence two prior affidavits sworn by the father. It remained open to the father to otherwise participate in the trial, including by making closing arguments. Moreover, the amicus did make written closing arguments with respect to the evidence and positions favourable to the father.
[32] The father also disputes the trial judge’s decision not to allow into evidence various video and audio recordings submitted by the father. This ruling is entitled to deference. The trial judge found that the recordings she declined to admit had no probative value. There is no basis to interfere with her conclusion.
[33] In all the circumstances, the trial judge made extensive and fulsome efforts to assist the father and ensure he had a fair opportunity to present his case. The father requested repeated adjournments, but with no explanation as to how more time would assist him either with his health or to retain counsel. In the end, the father chose not to participate in the trial, other than by filing his extensive document, which the trial judge accepted. The father has not shown that the trial judge failed to consider his evidence. Instead, he disagrees with her factual findings. This does not constitute procedural unfairness.
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[35] The amicus performed her role of presenting a case for the father and challenging the mother’s evidence. She called two witnesses for the father and cross-examined the mother’s witnesses. She also provided closing submissions to the trial judge.
[36] There can be little doubt that the role of the amicus in this case was challenging. Near the end of trial, the amicus advised the court that there had been a breakdown in her relationship with the father, such that she did not expect he would want her to help with his submissions. The father also appeared at the Zoom hearing to raise his own complaint that the amicus was not on his “side.”
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