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Criminal - Amicus Curiae. R. v. J.C.
In R. v. J.C. (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from "guilty pleas to one count of robbery and one count of failure to comply with probation" where the defendant was designated a dangerous offender.
The court held than a misapprehension of justice had occured through limits placed on an appointed amicus curiae at the lower court:[2] The appellant represented himself during the dangerous offender hearing. The appellant’s position was an unusual one – he wanted the court to declare him a dangerous offender and impose an indeterminate sentence – a position which appears to have stemmed from his frustration with delays in the process. Throughout the proceedings the appellant was disruptive, displayed a defeatist attitude, changed his mind several times, and constantly expressed frustration with the length of the process. The experienced sentencing judge faced the extraordinary challenge of maintaining a fair proceeding.
[3] The sentencing judge appointed amicus to assist him with that task. However, based on the sentencing judge’s understanding of the existing jurisprudence from the Supreme Court of Canada, the sentencing judge limited the scope of the amicus appointment.
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[6] That is what happened in this case. In the end, I am satisfied that the sentencing judge would have appointed an amicus with a broader adversarial role for the appellant if he had the benefit of the Supreme Court of Canada’s decision in Kahsai. In my respectful view, a different amicus appointment would have impacted the fairness or perceived fairness of the appellant’s hearing. The appellant has discharged his burden of proving that the appearance of unfairness was serious enough to taint the administration of justice and I would allow the appeal.
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[25] As I will explain, I am satisfied that the sentencing judge’s appointment of an amicus with only a limited role resulted in the appearance of unfairness giving rise to a miscarriage of justice. I agree with the sentencing judge’s own observations that appointing amicus in this case was “something of a sham” given the limited role provided for the amicus, which, of course, was based on the sentencing judge’s belief that the existing jurisprudence did not permit amicus to play a more robust role in the hearing. However, at the time of the hearing, the sentencing judge did not have the benefit of the Supreme Court’s decision in Kahsai. That decision supports the appellant’s position that amicus could have taken on a far more adversarial role in order to restore some balance to the proceedings.
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ISSUE 1: Was there a miscarriage of justice arising from the absence of an effective amicus?
(a) The Test for Miscarriage of Justice
[27] To succeed in this appeal, the appellant must persuade this court that the amicus appointment in his hearing created an irregularity so severe that it rendered his hearing unfair in fact or in appearance. He must persuade us that the gravity of the irregularity created such an appearance of unfairness that it would shake the public confidence in the administration of justice: see Kahsai, at paras. 29, 67; and s. 686(1)(a)(iii) of the Criminal Code.
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(c) Ontario v. Criminal Lawyers’ Association of Ontario
[29] When the appellant refused to retain counsel and chose to represent himself, the Crown agreed with the sentencing judge’s decision to appoint amicus. At the time of the hearing, the sentencing judge noted that there was a limited role permitted for amicus pursuant to the Supreme Court’s decision in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 (“CLA”). In CLA, the Supreme Court held that amici cannot take on the role of defence counsel: at para. 56. In this regard, the court raised several concerns, including the potential conflict between an accused’s constitutional right to represent themselves and an amicus appointed with the role of defence counsel. The court concluded that an amicus clothed with the duties and responsibilities of defence counsel could no longer be called a “friend of the court”.
[30] Given the sentencing judge’s comment in his reasons that “appointing amicus is something of a sham”, he undoubtedly believed that appointing an amicus with a more robust and adversarial role was restrained by CLA. This is not surprising. As summarized by Code J. in R. v. Jaser, 2014 ONSC 2277, at para. 34, the view of many trial judges was that the CLA judgment “limited the trial judge’s duty to assist the self-represented accused by making it clear that amicus can do no more than what the trial judge can do.”
(d) R. v. Kahsai
[31] After the appellant’s dangerous offender hearing concluded, the Supreme Court released its decision in Kahsai. The court in Kahsai went on to clarify its position in CLA, stating that, in exceptional circumstances, where required for trial fairness, amici may take on adversarial roles, including cross-examination and closing argument, as long as an amicus does not actually step into the shoes of defence counsel. The court also reiterated that the concerns raised in CLA remain relevant and are to be considered by judges when appointing amici.
[32] Exceptional cases that may warrant the appointment of an amicus include situations when an unrepresented accused is found fit to stand trial but suffers from mental health challenges; when an unrepresented accused refuses to participate; or when an adversarial perspective is required for a fair adjudication of the case: Kahsai, at para. 57.
[33] In sum, the role of an amicus must balance an accused’s right to conduct their own defence with what is necessary for trial fairness. The court summed up the applicable principles at para. 64:In sum, in the vast majority of cases, the responsibilities of the trial judge and the Crown will suffice to ensure trial fairness. Once it is determined that amicus is required, the trial judge retains wide discretion to appoint amicus with functions that are responsive to the needs of a case. This may include adversarial functions where necessary for trial fairness — for example, to restore balance to a proceeding when an accused chooses to self-represent and puts forward no meaningful defence. In tailoring the scope of the role for the amicus, the judge will consider the nature of the role of amicus as friend of the court and the circumstances of a case, including how the accused exercises their constitutional rights and what is needed to ensure a fair trial. While there are necessary limits to the adversarial functions that amicus can perform, the scope is broad enough to accommodate what is necessary for trial fairness in a particular case. [Emphasis added.] [34] The court also held that where a trial judge has failed to give amicus a broader adversarial mandate based on a misunderstanding of CLA, this is an error in principle.
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(g) What are more robust functions that amicus could have been assigned?
[44] The restricted role given to amicus left the sentencing judge with only one perspective on the evidence being presented to him, and as he noted in his reasons, “Crown counsel has been exceptionally fair but necessarily is adverse in interest to the defendant.” If the sentencing judge had the benefit of Kahsai, I am satisfied that he would have permitted a wider scope for the amicus in this case to ensure fairness in the proceedings.[3]
[45] I will provide some examples of the issues that may have been explored by amicus had a limited appointment not been made.
[46] First, amicus could have been specifically appointed to conduct a more thorough cross-examination to explore and test the s. 752.1 assessment psychiatrist’s opinion evidence. The following are general points (not specific to Dr. Woodside) as to what could have been explored in cross-examining a psychiatrist who did a s. 752.1 assessment, to test the opinion evidence and flesh out what its potential limitations may be. The amicus could have specifically highlighted the following areas that could potentially be explored:. Whether there were conditions or exceptions limiting the scope of the opinion that the assessor had not yet expressed;
. Clarification of what the limits of the risk assessment tools are, and what they do or do not indicate;
. Whether there were significant gaps in the assessor’s grasp of the information on which the opinion was based;
. Whether reliable details favourable to the accused in the body of information on which the assessor based his opinion were not factored into the opinion, and if they were missed;
. Whether they would have had an effect on the opinion;
. Whether there were any significant points of inconsistency between what the assessor wrote in the report and what the assessor stated in the in-court testimony; and
. Whether the assessor’s testimony strayed outside his area of expertise or into speculation. . R. v. Benhsaien
In R. v. Benhsaien (Ont CA, 2023) the Court of Appeal considers an appeal argument of 'ineffective assistance of counsel' where the defendant was aided by amicus:[6] Lastly, there is no merit to the appellant’s claim of ineffective assistance of counsel. It is important to note that the appellant was not represented by counsel; amicus was appointed to assist the court by ensuring that all relevant information was before the court and that all relevant arguments were made. In any event, amicus ably examined all of the Crown’s witnesses and brought to the jury’s attention the inconsistencies in their description of the assailant. . R. v. Ahmed
In R. v. Ahmed (Ont CA, 2023) the Court of Appeal considered the propriety of (trial) amicus' submissions (here there were separate trial and appeal amicus):[146] Overall, appeal amicus submits that the errors in approach by trial amicus caused actual unfairness to the appellant, because they contributed to errors by the sentencing judge. In the alternative, she submits that this court must consider whether trial amicus’s performance created an appearance of unfairness that rises to the level of creating a miscarriage of justice.
[147] I would not accept these submissions. For reasons I have already explained, I am not satisfied that the sentencing judge made any error in designating the appellant as a dangerous offender under any of ss. 753(1)(a)(i) and (ii) or s. 753(1)(b) of the Criminal Code. Further, I am not satisfied that the sentencing judge imposed an evidentiary burden on the appellant to establish a reasonable expectation of eventual control in the community.
[148] That said, I accept that, by the end of the DOH, the appellant was opposed to both a dangerous offender designation and the indeterminate sentence of imprisonment sought by the Crown. In these circumstances, I agree that particularly given the adversarial functions she had been assigned, trial amicus should not have made submissions that were in direct conflict with the appellant’s position. To the extent there may have been nothing to say in the appellant’s favour concerning a particular issue, trial amicus should have refrained from saying anything: Walker, at para. 119.
[149] However, I see no actual prejudice to the appellant arising from trial amicus’s submissions or want of submissions. Appeal amicus submitted that trial amicus’s failings caused actual prejudice to the appellant because they contributed to the sentencing judge’s errors. But as I have found no such error, there can be no such prejudice.
[150] Nor do I think that any shortcomings in trial amicus’s performance create an appearance of unfairness giving rise to a miscarriage of justice. Although trial amicus conceded that the appellant meets the statutory criteria for designation as a dangerous offender, she did not go farther, as happened in Walker, and actively advocate for that designation.
[151] In Walker, amicus actively advocated in favour of both the dangerous offender designation and imposing an indeterminate sentence “in a manner entirely antagonistic to Ms. Walker’s best interests”: such that by the end of the hearing, “Ms. Walker was in a worse position in the context of closing submissions than if amicus had not been appointed at all”: at paras. 118, 119. This court remarked that the hearing in Walker “looked like there were two Crown counsel present in the courtroom”: at para. 120.
[152] That is not what happened here. Although trial amicus did concede the dangerous offender criteria had been met, she did not actively advocate for a dangerous offender designation. Overall, it cannot fairly be said that the appellant was worse off as a result of trial amicus’s closing submissions. Again, the appellant patently meets the thresholds for a dangerous offender designation. Trial amicus led evidence to support a determinate sentence and LTSO and submitted that the court should carefully consider whether a determinate sentence together with an LTSO would adequately protect the public. And although she joined the Crown in asserting that the appellant bore the onus of demonstrating a reasonable expectation of eventual control in the community, she took many steps with a view toward showing that burden had been met, including: obtaining an order for a second dangerous offender assessment under s. 752.1 of the Criminal Code; cross-examining Crown witnesses to elicit evidence that could be helpful to the appellant; calling Dr. Fedoroff despite the appellant’s objections; and recalling Dr. Klassen.
[153] In the end, while trial amicus’s performance was imperfect, I am not satisfied it created any unfairness or appearance of unfairness rising to the high standard articulated in Kahsai: that considering the circumstances of the hearing as a whole, “a well-informed and objective person would find an appearance of unfairness so serious that it would shake their confidence in the administration of justice”: at paras. 68, 76-77. I repeat, patently the appellant meets the criteria for designation as a dangerous offender. Moreover, as I have said, trial amicus led evidence in support of, and submitted that the court should carefully consider, whether a determinate sentence together with an LTSO would adequately protect the public. . R. v. Kahsai
In R. v. Kahsai (SCC, 2023) the Supreme Court of Canada considered the role of an amicus curiae, here in a criminal trial with an unrepresented defendant. The case is essential for anyone considering the issue in a criminal trial as it addresses the relationship of amicus with the accused, any defence counsel, legal aid, Rowbotham counsel, loyalty to the court and more:D. Summary and Best Practices
[64] In sum, in the vast majority of cases, the responsibilities of the trial judge and the Crown will suffice to ensure trial fairness. Once it is determined that amicus is required, the trial judge retains wide discretion to appoint amicus with functions that are responsive to the needs of a case. This may include adversarial functions where necessary for trial fairness — for example, to restore balance to a proceeding when an accused chooses to self-represent and puts forward no meaningful defence. In tailoring the scope of the role for the amicus, the judge will consider the nature of the role of amicus as friend of the court and the circumstances of a case, including how the accused exercises their constitutional rights and what is needed to ensure a fair trial. While there are necessary limits to the adversarial functions that amicus can perform, the scope is broad enough to accommodate what is necessary for trial fairness in a particular case.
[65] In considering whether to appoint amicus, the judge should canvass the parties for their perspectives about the necessity and scope of an amicus appointment. The judge should consider whether an appointment that is limited in duration or scope would suffice. For example, assistance from amicus may only be necessary for cross‑examination of certain Crown witnesses or for a particular motion in the proceeding. It would also be helpful to reduce the terms of appointment to writing in a formal order or endorsement, explicitly identifying the nature and scope of the role for the amicus and the specific functions that the court requires.
[66] Finally, the trial judge should consider whether the mandate assigned to an amicus will make a confidentiality order necessary for the amicus to effectively discharge their role. As the intervener the Criminal Trial Lawyers’ Association submitted, full and frank conversation between the accused and an amicus may depend on a confidentiality order if the amicus is charged with advocating for the interests of the defence (see I.F., at p. 7). While solicitor-client privilege would not be available, a confidentiality order would create legal protections for communications between the amicus and the accused in discussing their case (see, e.g., Imona-Russel, at paras. 64 and 68, explaining how an undertaking by Crown counsel to treat all correspondence between the accused and amicus as privileged achieved the confidentiality necessary in that case).
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