Amicus Curae

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2023. (Rev. # 95315)

General Principles

See also: Representation at Trial

A superior court and provincial court dealing with criminal matters, has the discretion to appoint an amicus curiae counsel who will assist the court in the proceedings. This power arises from their inherent authority to "control their processes in order to function as courts of law" as well as the jurisdiction to " permit a particular proceeding to be successfully and justly adjudicated."[1]

An amicus can play a variety of roles as determined by the Court. There is no fixed role that they must play.[2]

Right to Self-Representation

The accused has a right to represent himself and cannot be forced to apply for counsel through legal aid or by way of a Robotham application.[3] However, an accused has no ability to discharge an amicus.[4]

Duty is Always to the Court

In any circumstances, the "defining characteristic" of an amicus is that their primary duty is to the court and responsibility to ensure "the proper administration of justice."[5] The amicus is not a lawyer to the accused, but rather is effectively a lawyer to the court.[6]

Purpose

An amicus curiae is counsel appointed by the court to assist an accused in representing himself. This is a more limited role than accused's counsel and does not require the confidence or consent of the accused. The amicus will provide assistance such as

  1. objecting to perceived legal errors;
  2. assisting the appellant in drafting a statement of the defence position;
  3. assisting the appellant in subpoenaing any defence witnesses; and
  4. advising the appellant on any questions of law.[7]

The role played by an Amicus, depending on the case, can range from relatively detached to fully engaged in the accused's behalf.[8]

The meaning of an amicus curiae "implies the friendly intervention of counsel to remind the Court of some matter of law which has escaped its notice and in regard to which it is in danger of going wrong."[9]

Whether to Appoint

The court must consider whether it can provide adequate guidance to an unrepresented accused such that it would permit a fair and orderly trial without an amicus.[10]

The judge should be mindful of whether an amicus is necessary to ensure the trial proceeds reasonably.[11]

The imposition of an amicus should be done "sparingly" and only in "exceptional circumstances."[12]

When Not to Appoint

The use of appointment should not undermine judicial independence, a legal aid scheme, or a ruling denying Rowbotham counsel.[13]

The court should not "impose counsel on an unwilling accused."[14]

Terms and Conditions of Amicus

The court may also set the terms and conditions of the appointment related to counsel's compensation.[15]

The court cannot impose "all of the powers and duties" of defence counsel, but can have them assume "defence-like functions."[16]

An Amicus cannot "control the litigation strategy."[17]

There is no solicitor-client privilege between the amicus and accused but the necessary confidentiality can flow from a Crown undertakign in consenting to the appointment of amicus.[18]

Amicus for Step Six Garofoli hearings

There is no special or enhanced obligation to appoint an amicus on a "Step Six" Garofoli application.[19]However, it should be done in "particularly difficult cases."[20]

Appeal of Appointment

Where the accused discharges their counsel who is subsequently appointed as amicus curiae, the accused can only appeal the appointment if there is an actual conflict of interest between the accused and his counsel.[21]

  1. ↑ R v Russel, 2011 ONCA 303 (CanLII), 270 CCC (3d) 256, per curiam
    R v Thompson, 2017 ONCA 204 (CanLII), per curiam, at paras 15 to 18
    Ontario v Criminal Lawyers' Association of Ontario, 2013 SCC 43 (CanLII), [2013] 3 SCR 3, per Karakatsanis J, at para 44 ("While courts of inherent jurisdiction have no power to appoint the women and men who staff the courts and assist judges in discharging their work, there is ample authority for judges appointing amici curiae where this is necessary to permit a particular proceeding to be successfully and justly adjudicated.")
  2. ↑ Criminal Lawyers, ibid., per Fish J (dissent), at para 117
    R v Cairenius, 2008 CanLII 28219 (ON SC), 232 CCC (3d) 13, per Durno J, at paras 52 to 59
  3. ↑ R v Imona-Russel, 2019 ONCA 252 (CanLII), 145 OR (3d) 197, per Lauwens JA, at para 67
  4. ↑ Imona-Russel, ibid.
  5. ↑ Criminal Lawyers, supra, at para 118 ("Regardless of what responsibilities the amicus is given, however, his defining characteristic remains his duty to the court and to ensuring the proper administration of justice.")
  6. ↑ Criminal Lawyers, supra, at para 118 ("An amicus’s sole “client” is the court, and an amicus’s purpose is to provide the court with a perspective it feels it is lacking ― all that an amicus does is in the public interest for the benefit of the court in the correct disposal of the case")
  7. ↑ R v Amos, 2012 ONCA 334 (CanLII), 292 OAC 298, per Watt JA
  8. ↑ Cairenius, supra, at paras 55 to 56
    Imona-Russel, supra, at para 66
  9. ↑ R v Samra, 1998 CanLII 7174 (ON CA), 129 CCC (3d) 144, per Rosenberg JA citing R v Grice, 1957 CanLII 375 (ON SC), 119 CCC 18, per Ferguson J
  10. ↑ Russel, supra, at para 69
    R v Rushlow, 2009 ONCA 461 (CanLII), 245 CCC (3d) 505, per Rosenberg JA, at para 21
  11. ↑ Russel, supra, at paras 73 to 75
  12. ↑ Ontario, supra
  13. ↑ R v Kahsai, 2023 SCC 20 (CanLII), per Karakatsanis J
    Ontario at para 116
  14. ↑ Ontario, supra, at para 116
  15. ↑ Russel, supra
  16. ↑ Kahsai, supra, at paras 38 to 39
  17. ↑ Imona-Russel, supra, at para 68
  18. ↑ Russel, supra, at para 68
  19. ↑ Thompson, supra
  20. ↑ Thompson, supra, at para 17
    R v Shivrattan, 2017 ONCA 23 (CanLII), 346 CCC (3d) 299, per Doherty JA, at paras 65 to 66
  21. ↑ Samra, ibid. at 160 per Rosenberg JA

Statutory Forms of Amicus Curae

See also: Cross-Examinations#Cross-Examination_by_Self-Represented_Accused

Under 486.3(1), in any proceedings involving a cross-examination of a witness under 18 years of age and the accused is self-represented, the prosecutor or witness may apply to have counsel appointed to conduct the cross-examination unless the "proper administration of justice requires".

Under 486.3(2), in any proceedings involving a cross-examination of a witness and the accused is self-represented, the prosecutor or witness may apply to have counsel appointed to conduct the cross-examination where it is necessary "in order to obtain a full and candid account".

Under 486.3(4), in any proceedings involving a cross-examination of a witness with respect to an offence of criminal harassment (264) and the accused is self-represented, the prosecutor or witness may apply to have counsel appointed to conduct the cross-examination unless the "proper administration of justice requires".

Cross-Examination Counsel

Section 486.3 counsel must confer with the accused to "ensure that all appropriate lines of questioning consistent with the theory of the defence are pursued" during cross-examination.[1] They are not, however, required to have to be tied to a script approved by the accused.[2] Any objections the accused has with the line of questions of the amicus can be "mediated" by the trial judge.[3]

  1. ↑ R v Lundrigan, 2020 ABCA 281 (CanLII), at para 82
  2. ↑ R v Jerace, 2021 BCCA 94 (CanLII), per JA, at para 101
  3. ↑ Jerace, ibid., at para 102
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