What is the role of Amicus Curiae?

A self-represented accused can present all sorts of challenges for the court. When that self-represented accused makes a conscious effort to act contrary to their own best interests the problems are magnified. One way the court tries to address the issue can be the appointment of a lawyer as amicus curiae. Our latest Canlii connects summary takes a look at R. v. Kahsai, 2022 ABCA 12 and what the various justices had to say about the role of amicus curiae.

Issue: Was the extent of the appointment of amicus curiae sufficient given the facts of the case?

Facts: Mr. Kashai was convicted of first-degree murder and appealed to the Alberta Court of Appeal. He was self-represented at trial. The court twice appointed amicus curiae.

His conduct throughout the trial was described as “ totally disruptive of the entire court process commencing with the preliminary inquiry, which had to be adjourned as a result of his antics”. He refused to retain counsel following the preliminary inquiry and was adamant that he wanted to represent himself. At trial he refused to co-operate with either amicus.

Throughout the trial the Mr. Kashai was “highly obstructionist and totally ungovernable”. The trial judge found his conduct was intentionally disruptive and distracting. He was assessed on three occasions and found to be fit to stand trial. 

Ruling:  In a 2-1 decision the Court dismissed the appeal. A number of issues wrre raised but we will focus on the appointment of amicus. Mr. Kashai argued that unfairness resulted from the trial judge’s failure to appoint a partisan amicus to act in a defence-counsel role.

McDonald J.A. found that the trial judge’s decision to appoint a more limited amicus did not create a miscarriage of justice. Instead it was in line with Mr. Kashai’s wishes at trial who told the amicus at trial not to cross-examine an important witness and refused to suggest any sort of viable defence. 

In concurring reasons, Khullar J.A. considered the scope of the role of amicus. 

It is uncontroversial that the role of amicus includes, in an appropriate case, making submissions on the law to assist the court in its duty to apply the law

In an appropriate case this can include taking an adversarial position to the Crown on the law. Similarly, the appropriate role of an amicus may also include taking an adversarial approach to the Crown’s evidence. This may be necessary to assist the trial judge or jury evaluate the evidence and, in that way, help to “balance the courtroom” which will help to achieve a fair hearing.

The potential roles for amicus were summarized:

-       Participating in pre-trial motions;

-       Cross-examining Crown witnesses (in addition to the self-represented accused being able to exercise that right);

-       Making submissions, including objections, about the admissibility of evidence;

-       Raising legal issues with the Crown on behalf of the accused and speaking to the Court on behalf of the accused in relation to legal issues;

-       Participating in pre jury charge conferences;

-       Making closing arguments to the trial judge or jury which advance an accused’s position; and

-       Making submissions on sentencing.

There are, however, limits on the role an amicus can fulfill in a trial. Firstly, they can not determine litigation strategy. Secondly, they are not to take instructions from the accused 

Interestingly, Khullar J.A. noted a diverge in the caselaw on this second limitation. 

[174]      A second limitation relates to whether an amicus can take instructions from a self-represented accused. Some decisions have so held: Mastronardi at para. 23; Imona-Russel at para 31. However, these cases are in tension with the Supreme Court’s insistence that the distinction between an amicus and a defence counsel should not be blurred. In CLAO, the Supreme Court specifically identified, at paras 53 and 120, amicus taking instructions from the accused as an example of improper blurring. I note that the court in Imona-Russel made some suggestions to address those concerns. This issue did not arise in this appeal, and it is wiser for this Court to address it specifically within a specific factual matrix and with full argument.

Khullar J.A. continued:

[178]      As I have explained in these reasons, the range of roles and functions that an amicus can legitimately discharge in a criminal trial with a self-represented accused is broad. What roles are appropriate depends on the circumstances and it is not possible or desirable to articulate firm rules about which roles the amicus can or should discharge in specific situations. Trial judges must be left with the discretion to determine the appropriate role of an amicus in a particular case. However, the closer an amicus gets to acting like defence counsel, the more cautious a trial judge needs to be. At all times, an amicus curiae’s duty of loyalty is owed to the court and the purpose of appointing an amicus is to assist the court in ensuring a fair trial. Deference is owed to this determination by a trial judge.

Finally, the need for clarity of role was emphasized.

[179]…A key lesson of these cases is that the trial judge must take care to identify why an amicus is being appointed, what role the amicus is to play, and what constraints will be placed on him or her. 

In dissenting reasons O’Ferrall J.A. found that the trial judge had an obligation to protect the accused from himself. He agreed that the accused was the author of his own misfortune but, unlike the majority, concluded that that did not end the matter. 

He questioned whether in circumstances where an indigent, fit, but intentionally disruptive and unmanageable accused who is in extreme jeopardy, ignoring all advice, refuses defence counsel, refuses to meaningfully participate and does nothing to defend himself, perhaps with the misguided intention of securing a new trial on appeal the court has a duty to appoint counsel in the interests of ensuring fairness or in the interests of preventing an accused from engaging in tactics intended to prevent justice from being done.

He reasoned:

[186]      Forcing counsel on an unrepresented accused when the court is satisfied that the accused’s conduct of the case will make a fair trial impossible does not infringe upon an accused’s right to control his own defence. It preserves his right to fair trial. It protects his right to life, liberty and security of the person and the right not to be deprived of same except in accordance with principles of fundamental justice. It also ensures the integrity of trial process. Whether counsel is amicus curiae with expanded powers or defence counsel proper is up to the trial court. But when the goal is one of a fair trial and avoiding wrongful convictions, the accused’s failure to cooperate ought not to be allowed to cause a miscarriage of justice.