The July 10 Nova Scotia Court of Appeal decision in R. v. Clyke, 2024 NSCA 66, revolves around Christian Clyke who in 2019 was found guilty of murder.
Right off the top, the appeal court notes that Clyke “is schizophrenic and has had periods of profound dysregulation which have waxed and waned depending on the treatment received from time to time.”
It was in May 2019 that Clyke was convicted of second-degree murder and handed life in prison with no chance of parole for 12 years. While behind bars, Clyke decided to appeal his conviction and retained a lawyer different from the one he had at trial.
During that appeal, Clyke argued two points: His conviction was a miscarriage of justice due to “the ineffective assistance of trial counsel,” and his right “to make a full answer and defence” had been breached due to the Crown’s failure to disclose the recording of a statement Clyke had given police.
But then things went sideways.
Clyke fired his appeal lawyer after the latter did not obtain a transcript from a civil case Clyke insisted would “invalidate his murder conviction.” Clyke then had prison staff fax a letter to the court saying he was discontinuing his appeal.
The court, however, told Clyke to attend the scheduled appeal hearing and appointed his fired appeal lawyer as amicus curiae (an impartial lawyer brought in to represent a position of interest).
That hearing took place on June 22, 2022, during which Clyke said he would continue his appeal and introduce fresh evidence relating to the allegation of ineffective counsel. This matter was heard first and included testimony from two expert witnesses who spoke to Clyke’s motion.
Clyke also took the stand. But during cross-examination, he became “upset” and again stated that he wanted to discontinue his appeal. The presiding judges offered him the chance to get legal advice, but Clyke insisted that his appeal end.
Thus, the court dismissed the appeal days later, on June 29, 2022.
But around five weeks later, Clyke, his mental state continuing to deteriorate, called his former appeal lawyer and asked that his appeal be reactivated.
That brought things to where they are now.
At this latest appeal, the Crown argued that reopening an appeal “should be permitted only in the most clear and compelling of cases,” and that the court should make Clyke “establish a ‘clear and compelling’ case” to justify its re-opining.
The Crown further argued that Clyke “fully understood the ramifications of abandoning the appeal mid-hearing,” that there was a lack of expert evidence demonstrating that he was delusional “or otherwise unable to make decisions regarding the conduct of his appeal” and that the June 22 appeal had been “disposed of ‘on the merits.’”
Clyke, on the other hand, argued that his appeal was not resolved on the merits, but was discontinued solely on his request that it end.
Appeal court Justice Cindy Bourgeois, with Justices Joel Fichaud and Carole Beaton in agreement, ruled in favour of Clyke, finding that the “order of dismissal previously issued in this matter was not based on the merits of the appeal,”
“The evidence presented on the motion demonstrates the hearing of the appeal was cut short by Mr. Clyke’s insistence on discontinuing it,” writes Justice Bourgeois. “The motion for fresh evidence had not concluded, nor had the hearing of argument on the merits commenced. The order clearly noted it was made due to ‘the appellant advising the Court that he wished to abandon his appeal.’”
Justice Bourgeois also pointed to there being “arguable merit to the assertion Mr. Clyke did not receive effective representation from his trial counsel,” that the charge against Clyke is “extremely serious” and that he made his decision to abandon his appeal “when he was emotionally upset and without the benefit of legal counsel.”
When asked for comment on the ruling, Rob Currie, a professor with Dalhousie University’s Schulich School of Law, said the court “is very concerned that the application to re-open the appeal both is fair and is seen to be fair.”
He said other courts should heed the ruling.
“The Court is not there to be a ‘caretaker’ of mentally ill people, but it definitely has a responsibility to make sure that Court procedures are applied sensitively, contextually and with an eye to fairness and avoiding a wrongful conviction. As the Court says, it would take an extraordinary case, but this does seem to be one. I think it is the kind of decision-making that other courts should model.”
Currie said the appeal court’s findings all come back to the mental health component.
“It is important that people with mental illnesses not have their own autonomy and decision-making undermined, and the Court is conscious of this and careful. But they can also see quite clearly, on the evidence before them, that in a sense Mr. Clyke needed to be protected from himself, because he was making bad decisions about what he should do, based on what the Court thinks is a delusion, and appears incapable of consistently making good decisions.”
Currie applauded the appeal court “for being sensitive to [Clyke’s] personal autonomy while at the same time making sure that the ‘ordinary’ operation of the justice system does not oppress someone who lives with extraordinary circumstances.”
Malcolm Jeffcock, Clyke’s lawyer for this latest appeal, was unavailable for comment. The Crown, Mark Scott, declined comment due to the case still being before the courts.
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