SCC clarifies judges have wide discretion in appointing amicus curiae with adversarial role

The Supreme Court of Canada has dismissed the appeal of a man convicted of murder in a case that examined the proper scope of the role of amicus curiae in a criminal trial.

In R. v. Kahsai, 2023 SCC 20, the question before the court was whether, when an unrepresented accused is incapable of mounting a competent defence, the trial judge is obligated to appoint an amicus curiae with an adversarial mandate to advance the interests of the defence. The SCC found that the appellant Emanuel Kahsai had failed to show that the role an amicus curiae played in his trial made the trial unfair or appear unfair.

“The SCC held that a trial judge has wide discretion to appoint amicus and to determine their mandate in ensuring a fair trial,” says Katherine Clackson, who represented Kahsai with Daniel Song. “Because of that broad discretion, the Court found there was no miscarriage of justice here.”

“This case solidifies the broad discretion of trial judges in appointing amicus, including for adversarial purposes, and confirms the principle that the use of amicus can be a flexible tool in ensuring a fair trial.”

Clackson adds that the amicus curiae in Kahsai’s case admitted several times that he had not reviewed all the Crown’s disclosure and did not make a closing argument.

“There were live questions about whether the accused was guilty of first-degree or second-degree murder,” she says. “In our view, this was not a fair trial; the appointment of amicus came too late, and without a clear picture of how it would mitigate the risk of unfairness. Even a disruptive accused is entitled to a fair trial.”

The SCC applied a “thoughtful, nuanced approach to a very difficult area of the law,” says Matthew Nathanson, who represented an intervenor, the Independent Criminal Defence Advocacy Society, with Rachel Wood. The most important aspect of the judgment is that the prohibition on adversarial amicus curiae, which existed in some provinces, is gone. The decision clarifies that the amicus curiae can play a role adversarial to the Crown, just not to the accused, he says.

“While the ruling provides much needed guidance, it is flexible enough to be adapted to the unique circumstances and challenges of each individual case.”

The court also affirmed the role of the Crown in ensuring trial fairness, says Nathanson. While it makes sense from a principled perspective, how it plays out in practice is more difficult to define, he says.

“I hope the Crown will heed this message and take proactive steps, when necessary, to assist unrepresented accused and help ensure their trials are fair.”

Kahsai was convicted of first-degree murder for killing his mother and the 25-year-old woman for whom his mother worked as a live-in caretaker.

Before trial, three psychiatric assessments found that Kahsai was fit to stand trial, but feigning symptoms of mental illness. He fired his lawyer before the preliminary inquiry and refused to hire another one, insisting on representing himself.

“There is no doubt there was a striking imbalance in this trial,” said Justice Andromache Karakatsanis, who wrote the reasons for the SCC. In addition to being unrepresented, Kahsai was often excluded from the proceedings because of his disruptive behaviour and “gave no meaningful defence” when he was participating.

The judge appointed a lawyer to act as amicus curiae, not to represent Kahsai but to assist the court in ensuring the proceedings unfold fairly. Kahsai resisted the appointment and refused to cooperate.

Kahsai was convicted of both counts of murder and sentenced to life in prison without the possibility of parole for two consecutive periods of 25 years.

In the SCC’s decision, Karakatsanis said that a court’s inherent jurisdiction to manage its procedure and ensure a fair trial gives it the power to appoint amicus curiae, which can serve a variety of functions, including providing the accused with an adversarial representative. But the amicus curiae’s functions cannot interfere with the accused’s right to represent themselves, erode the court’s partiality, or undermine a judicial decision to refuse state-funded counsel, and the functions cannot frustrate the duty of loyalty the amicus curiae owes the court, she said.

When an accused is unrepresented, in most cases the duty of the trial judge and Crown counsel to ensure a fair trial will prevent a miscarriage of justice, said Karakatsanis. But an amicus curiae with adversarial functions may be required where the unrepresented accused has mental health challenges but is fit to stand trial or is refusing to participate in the process, she said.

When determining the scope of the amicus curiae’s role, Karakatsanis said the trial judge must consider the nature and complexity of the charges, whether it is a jury or a judge-alone trial, the accused’s attributes and whether they need assistance testing the Crown’s case or advancing a defence, and the assistance the Crown and trial judge can provide.

In dismissing Kahsai’s case, the court found that while it was open for the judge to give the amicus curiae a more adversarial role, there was no obligation, and the judge would have had to do so over the “strenuous objections” of the accused. It is unclear whether Kahsai would have benefited from an earlier appointment and a broader mandate because he “resisted the appointment and refused to cooperate with amicus throughout trial,” said Karakatsanis. The court found that a reasonable person, considering the trial’s circumstances, would not find that a miscarriage of justice occurred.