R. v. Kahsai, 2023 SCC 20 (40044)
“K chose to represent himself at trial for two counts of first degree murder. When given the opportunity to address the court, K failed to cooperate with the trial process or advance any coherent defence. He was repeatedly excluded from the courtroom and trial process because of his chronically disruptive behavior [sic]. Partway through the trial, the trial judge determined that the appointment of amicus curiae was necessary to ensure a fair trial. An amicus was appointed to cross‑examine Crown witnesses, but was instructed not to advocate on behalf of the defence. K resisted the appointment and mostly refused to cooperate with the amicus. K’s attempt to deliver his own closing argument was cut short by the trial judge, who did not solicit any supplementary closing argument from trial amicus. K was convicted by a jury on both counts of first degree murder. He appealed his convictions, arguing, among other grounds, that failing to appoint amicus with an adversarial role at an early stage in the proceedings tainted the perceived fairness of the trial. A majority of the Court of Appeal dismissed the appeal, finding there was no miscarriage of justice.”
The SCC (7:0) dismissed the appeal.
Justice Karakatsanis wrote as follows (at paras. 1-5, 38-42 and 49):
“At issue in this appeal is the proper scope of the role that amicus curiae — a “friend of the court” — can play at criminal trial. When an unrepresented accused seems unable to advance a competent defence, does the guarantee of trial fairness permit or require the trial judge to appoint amicus with an adversarial mandate to advance the interests of the defence?
This appeal invites us to define the limits to the role of amicus. It also presents an opportunity to clarify and affirm the principles established by this Court in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43,  3 S.C.R. 3 (CLAO). As I will explain, in exceptional circumstances, the trial judge retains wide discretion to appoint amicus with adversarial functions that can respond to the needs of a particular case. In tailoring the role for amicus, the judge must respect both the right of the accused to conduct their own defence and the right to a fair trial. These principles of fundamental justice, along with the nature of the role, help define the assistance that amicus can provide. While the role of amicus therefore has limits, the scope is broad enough to assist the judge where necessary to ensure a fair trial.
We must also determine whether a miscarriage of justice arose from the circumstances of Mr. Kahsai’s trial: Did the delayed and limited appointment of amicus create an appearance of unfairness so serious that it taints the administration of justice?
There is no doubt there was a striking imbalance in this trial. Mr. Kahsai was unrepresented and often excluded from participating in the proceeding because of his disruptive behavior. When he did participate, he advanced no meaningful defence. Although amicus assisted with cross-examination of Crown witnesses and submissions to the court, more preparation time and a broader adversarial role could have enhanced his ability to advance the interests of the accused.
That said, the law imposes a high standard for proving a miscarriage of justice. The inquiry must consider the circumstances of the trial as a whole. Here, the trial judge faced the difficult task of managing a jury trial that Mr. Kahsai seemed determined to derail. Once it became obvious that Mr. Kahsai would not cooperate with the court or advance any viable defence, the trial judge took several measures to preserve trial fairness and restore balance to the proceeding. This included the appointment of an amicus. Although the trial judge seems to have held the view that amicus could not play a more adversarial role, it is not clear that he would have granted a broader mandate in the circumstances, particularly given Mr. Kahsai’s objections to the appointment of the amicus, and he was under no obligation to do so. Any irregularity does not result in a miscarriage of justice.
The role of amicus is highly adaptable and can encompass duties that exist on a broad spectrum of functions (see R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259, at para. 65; CLAO, at para. 117). The precise role for amicus will depend on the particular needs identified by the trial judge. But the role of amicus is not without limits. In CLAO, this Court established that amicus would exceed the proper scope of their role once “clothed with all the duties and responsibilities of defence counsel” (para. 114, per Fish J., dissenting, but not on this point). CLAO identified several dangers that arise from blending the roles of defence counsel and amicus. First, the Court recognized that such an appointment may interfere with the constitutional right of the accused to represent themselves (para. 51). Second, the Court articulated concerns that arise from the role of amicus as friend of the court. These include the potential conflict of interest between the duty that an amicus owes to the court and the duty they would owe to the accused; and the risk that an amicus might undermine the impartiality of the court by giving strategic litigation advice to the accused (paras. 53‑54). Finally, the Court identified additional dangers that may arise in particular cases, including the risk that an amicus appointment could undermine the legal aid scheme or a judicial decision to refuse to grant state-funded counsel to the accused (paras. 52 and 55).
These dangers will preclude a court from appointing amicus to assume all of the powers and duties of defence counsel. That said, there is a wide range of adversarial functions that amicus can execute without engaging these concerns, as the subsequent cases show. In some cases trial fairness may be best served by appointing amicus to oppose the position of the Crown where the accused is unrepresented. The dangers identified in CLAO help tailor the role for amicus, as I explain below. But they do not impose a bar on appointing amicus with defence-like functions, when the court determines that an adversarial perspective is needed to ensure a fair trial.
To begin, the scope of permissible functions for amicus is limited by their fundamental role as a friend of the court. As this Court recognized in CLAO, two primary constraints emerge from the nature of this role.
First, assuming the role of amicus imposes a duty of loyalty to the court that amicus must always uphold, regardless of the specific functions they are assigned to discharge. To prevent a conflict of interest, counsel acting as amicus cannot uphold a simultaneous duty of loyalty to the accused (CLAO, at para. 53). This means that once counsel is appointed as amicus, they cannot maintain any solicitor-client relationship with the accused. An amicus does not take instructions from the accused and cannot be dismissed by the accused. Thus, while amicus can advocate in ways that advance the interests of the defence, they do not “represent” the accused. This may be especially important for the trial judge to make clear when appointing amicus in a proceeding with an accused who is unrepresented despite their efforts to seek or retain counsel. Second, and relatedly, as a friend of the court, the mandate of amicus is to act as a lawyer of the court and for the court. Thus, amicus cannot be given functions that would essentially undermine the court’s duty of impartiality — for example, by advising the accused on strategic litigation decisions (CLAO, at para. 54). If in performing their assigned mandate the amicus encounters a conflict with the duty of loyalty they owe to the court, they must always privilege their duty to the court. The amicus should alert the court immediately if they are put in a position that would compromise their ability to discharge their duty of loyalty to the court.
In sum, the proper scope of the roles for amicus is limited by necessary constraints inherent in the nature of the role. First, the role of amicus as a friend of the court means that amicus can never discharge functions that would violate their duty of loyalty to the court or undermine the impartiality of the court, such as by advising on key strategic defence choices. Second, the mandate assigned to amicus should respect the key strategic decisions asserted by the accused while also respecting what is required for trial fairness. Finally, the appointment of amicus cannot be exploited to circumvent the legal aid scheme or judicial decisions to refuse to grant state-funded counsel. While these limits do not preclude amicus from performing any adversarial functions, they do restrict the kinds of assistance that amicus can provide.”