Re Jennifer Hart, 2011 NLCA 64

In Re Jennifer Hart, the Newfoundland and Labrador Court of Appeal held that a defendant is not entitled to continuously postpone an appeal process for the substitution of counsel when there is nothing to suggest that their counsel did not act professionally. Nor does the possibility that the appellant may not be mentally fit to conduct his appeal mandate that the appeal come to a halt.

 In the case, the court examined whether the appellant’s wife could be appointed his guardian ad litem during his appeal of murder conviction. Although he was represented by counsel at his trial and at earlier stages of the appeal process, he dismissed his counsel who was appointed under s. 684 of the Criminal Code and has not sought to appoint other counsel or to request the Court’s further assistance in appointing counsel. Justice Green decided that the application to appoint Mrs. Hart as guardian as litem should be dismissed.

Justice Green assumed, but did not decide, that the Court had jurisdiction to appoint a guardian ad litem in these circumstances, but he concluded that the interests of the public and Mr. Hart in having the appeal decided in a timely manner outweighed the interests of Mr. Hart in having oral advocacy on this appeal. In light of the fact that four and a half years had passed since a notice of appeal was filed on behalf of Mr. Hart, Justice Green held that the appointment of a guardian ad litem or an order to assess Mr. Hart’s mental condition would only delay the appeal even further. Moreover, the amicus curiae, who was appointed by the Court on Mr. Hart’s behalf, had filed an extensive brief of legal argument pertaining to Mr. Hart’s appeal and Ms. Rosellan Sullivan, who was selected by Mr. Hart to be his legal counsel, filed a comprehensive factum in support of Mr. Hart’s appeal before he dismissed her as his counsel. Justice Green further noted that much of the delay in processing the appeal had resulted from Mr. Hart’s lack of cooperation in identifying counsel to act for him and his unwillingness to participate in the proceedings or make his wishes known to the Court.

October 4, 2011
Link to Decision

Michael Murphy
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