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Civil and Administrative
Litigation Opinions
for Self-Reppers


Criminal - Amicus Curiae

. 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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Last modified: 12-12-23
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