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Presser co-authors book chapter honouring OCA justice

Toronto criminal lawyer Jill Presser remembers the honour of working closely with Justice Marc Rosenberg as a member of the amicus curiae roster to assist unrepresented mentally disordered appellants at the Ontario Court of Appeal (OCA).

“He was a wonderful mentor to me,” she tells AdvocateDaily.com.

As a tribute to the many legal contributions of the late justice, Presser has co-authored with Anita Szigeti a chapter in a new book entitled, To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg.

“I was extremely saddened by his untimely death, and felt his loss acutely,” Presser says. “I wanted to find a way to honour his legacy and memory. Participating in writing the book was a good way to do that.”

Presser, principal of Presser Barristers, says memorializing what Rosenberg did to improve mental health law was a “labour of love." 

“It was a small way to thank him and honour him for his contributions, decency and humanity,” she says.

Rosenberg is especially remembered for his commitment to access to justice and procedural fairness for the mentally disordered, Presser and Szigeti write.

“Justice Rosenberg’s commitment to ensuring that vulnerable mentally disordered accused and appellants received access to justice and the highest standards of procedural fairness is a thread that ran consistently through his monumental career,” they say.

Their chapter highlights the justice’s legacy of fair-mindedness, compassion and nuanced understanding of the issues unique to mentally disordered individuals in the justice system.

“But perhaps his greatest impact in this field was as the creator and supervisor of a unique amicus curiae program to assist unrepresented mentally disordered appellants challenging dispositions of the Ontario Review Board (ORB) in the Court of Appeal,” Presser and Szigeti say.

“In 2001, Justice Rosenberg founded an amicus curiae program for mentally disordered appellants in the Court of Appeal for Ontario. Before this program, mentally disordered accused under the ORB’s jurisdiction generally represented themselves without any assistance from counsel.

"In setting up the initial pilot project for barrister-style duty counsel assistance to these appellants, Justice Rosenberg consulted with the Mental Health Legal Committee, the Criminal Lawyers’ Association and the Ministry of the Attorney General."

Until the program finished in 2013, Rosenberg oversaw a team of appellate lawyers who had experience in mental health law, and these served as an amicus curiae for ORB appeals, Presser and Szigeti say.

The program "allowed many unrepresented mentally disordered appellants in Ontario to access their statutory right to appeal in a meaningful way," and without their assistance, "many of these appellants would not have had arguments serving their legal interests presented to the Court of Appeal,” they write.

“Amicus appointed under Justice Rosenberg’s program were to assist the unrepresented appellant in the interests of justice. This meant that amicus lawyers were not required to take instructions from the appellant. Instead, they were able, even expected, to advance the available grounds of appeal most likely to succeed and in the best interests of the development of the law.”

Presser and Szigeti note that the small roster of lawyers in the program under Rosenberg’s guidance worked together to educate the court about issues unique to NCR (not criminally responsible) accused.

“This resulted in the development of a robust body of review board jurisprudence from the Court of Appeal for Ontario, setting precedents and advancing the interests of vulnerable mentally disordered accused as well as establishing procedural safeguards for them during the hearing process,” they say.

“As a direct result of the amicus program for mentally disordered accused, Ontario now has by far the most developed and extensive review board jurisprudence in Canada.”

Pointing to a series of decisions Rosenberg wrote, Presser and Szigeti highlighted his contributions, saying that he advanced the interests of mentally disabled appellants in terms of dignity, access to justice and procedural protections they were afforded by the court.

In one decision, Rosenberg found that when a client is fit to stand trial, the lawyer must take instructions from him or her in relation to whether to pursue an NCR verdict. 

“Such instructions must be based on full information and advice from the lawyer about the nature and potential consequences of an NCR verdict, including the possibility of indefinite detention in psychiatric hospital,” write Presser and Szigeti. “Justice Rosenberg held that if counsel did not provide complete information to an accused about an NCR verdict, this may support a finding of ineffective assistance of counsel.”

They also described how he “demonstrated remarkable sympathy and compassion for the challenges faced by mentally disordered defendants as well as an unwavering commitment to treating these individuals with the highest level of respect and dignity. 

“Although he is now gone, the law he created lives on. His work continues," they write.

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