Background
J.W. was convicted of sexual assault following a trial before Justice Carol A.R. Brewer of the Ontario Court of Justice on September 15, 2023. Prior to trial, J.W.’s retained counsel withdrew, and J.W. sought an adjournment to retain new representation. The case management judge refused the adjournment — it was J.W.’s second such request — citing the seriousness of the offence, the number of witnesses involved, court resource limitations, and concerns about J.W.’s attendance record. J.W. was accordingly required to represent himself at trial.
To assist the self-represented accused, the case management judge appointed J.W.’s former counsel to serve as both trial amicus curiae and as counsel under s. 486.3 of the Criminal Code (to cross-examine the complainant on J.W.’s behalf). J.W. did not object to his former counsel continuing in that capacity — he confirmed he wished it — but expressed that he wanted full legal representation rather than mere amicus assistance. J.W. abandoned his sentence appeal before the hearing; only the conviction appeal proceeded.
On appeal, amicus curiae argued three grounds: that the case management judge exercised his discretion unreasonably in refusing the adjournment; that compelling J.W. to self-represent on short notice was unfair; and that appointing former counsel as amicus and s. 486.3 counsel created a potential conflict of interest and risk of misuse of confidential information, while failing to remedy the appearance of unfairness. Amicus submitted these cumulative errors amounted to a miscarriage of justice requiring a new trial.
The Court’s Holding
The Court of Appeal, per Roberts, Miller, and Gomery JJ.A., dismissed the appeal. The court held that J.W. had not met the high threshold required to establish a miscarriage of justice. An accused has no absolute right to an adjournment to retain new counsel, and the case management judge — who had presided over the judicial pre-trial and was fully aware of all relevant circumstances — reasonably balanced J.W.’s fair trial interests against the public interest in timely justice. J.W. had been on notice for several months that he might need to proceed without retained counsel.
The court further held that appointing J.W.’s former counsel as amicus and s. 486.3 counsel was not an error. J.W. himself confirmed he had no objection to his former counsel continuing in the proceeding. No confidential information was disclosed, and former counsel — deeply familiar with the file and fully prepared — discharged the amicus role effectively. The trial judge noted that cross-examination of the complainant was so effective that she placed no weight on the complainant’s evidence absent independent corroboration.
Finally, the court found no basis to interfere with the conviction on the merits. The conviction rested on solid evidence: security footage established that a sexual assault occurred; the perpetrator carried a Presto card discarded at the scene containing a DNA mixture to which J.W. was highly likely a significant contributor; video surveillance showed the assailant had a Bahamian flag tattoo on the right hand matching J.W.’s tattoo in design and location; and the assailant carried the same distinctive backpack as J.W.
Key Takeaways
- The right to counsel of choice is not absolute in Canada; a trial judge’s refusal to adjourn to permit retaining new counsel does not automatically constitute a miscarriage of justice.
- To establish a miscarriage of justice based on trial unfairness, an appellant must show an irregularity so severe that it rendered the trial unfair in fact or appearance — a high bar assessed from the perspective of a reasonable and objective observer (R. v. Kahsai, 2023 SCC 20).
- Appointing an accused’s former counsel as amicus and s. 486.3 counsel is not inherently problematic, particularly where the accused consents and no confidential information is disclosed.
- Where physical, forensic, and video surveillance evidence solidly supports conviction, an appellate court will decline to interfere even where procedural concerns are raised.
Why It Matters
This decision reinforces the limits on an accused’s right to an adjournment to secure counsel of choice, particularly where prior adjournments have already been granted and court and witness resources are at stake. Defence counsel and accused persons should be aware that the mere fact of self-representation — even on short notice — will not suffice to establish a miscarriage of justice without a concrete showing of actual or apparent unfairness affecting the trial’s integrity.
The case also offers practical guidance on the use of amicus curiae in criminal proceedings involving self-represented accused. Courts retain flexibility to appoint former defence counsel as amicus where the accused consents and appropriate safeguards are in place, and such appointments can satisfy fair trial obligations even when the accused would have preferred full representation. The decision is subject to a publication ban under s. 486.4 of the Criminal Code protecting the identity of the complainant.