You often hear about individuals or organizations serving as amicus curiae in court proceedings. Latin for “friend of the court,” an amicus curiae is essentially someone who is not a party to a lawsuit but is nevertheless allowed to participate. Oftentimes, the role of the amicus is to help educate the court or bring a third-party perspective to the legal issues involved.

For instance, in appellate cases, an amicus might be an organization that has an interest in the outcome of the case. In fact, the United States government often participates in appellate cases as an amicus when a lawsuit involves the constitutionality or interpretation of a federal statute. A court may even appoint someone to serve as amicus in a given case. This can happen when both sides agree that a trial court erred and neither wishes to defend the lower court on appeal. The appellate court can thus appoint amicus to ensure that it hears both sides of the argument.

Canada’s Supreme Court Dismisses Appeal of Double-Murder Conviction

The Supreme Court of Canada recently addressed the scope an amicus can and should play in that country’s legal system, particularly with respect to criminal cases. This particular case, R. v. Kahsai, involved a double-murder case from Alberta. The defendant elected to represent himself at trial. Midway through the proceedings, the trial court appointed amicus to provide limited assistance to the court. After a jury convicted the defendant, he argued on appeal the judge should have appointed amicus sooner and given them a broader mandate to act at the trial.

This sad case began in October 2015. Police in Calgary, Alberta, found a 54-year-old woman and her caretaker dead in their home. Both victims were stabbed multiple times. Following an investigation, the police identified the woman’s biological son–the defendant in this case–as the primary suspect. The government’s theory was that the defendant killed his mother out of “personal animus,” and then murdered the caretaker to eliminate her as a potential eyewitness.

The defendant fired his criminal defence lawyer and declined to retain new counsel before trial. A court-ordered psychiatric evaluation determined the defendant was “fit to stand trial but feigning symptoms of mental illness.” The defendant chose to represent himself at trial.

The case was tried before a jury sitting in the Court of Queen’s Bench in Alberta. The judge appointed amicus to assist the defendant with jury selection. But not only was the defendant unwilling to participate in his own defence–he was also disruptive to the point where he was removed from the courtroom and only allowed to participate “from a separate room via video conference.” (Apparently, the defendant continually shouted throughout the trial that he was the victim of a conspiracy against him perpetuated by various authorities in the United States.)

As the trial proceeded, the judge decided to appoint a second amicus “in the interest of justice and a fair trial.” The court cautioned amicus was not there to act as the defendant’s attorney, as he had made it clear he did not want one. Rather, amicus was there to test the government’s evidence by cross-examining the government’s witnesses “as he saw fit.” The defendant could still cross-examine the witnesses himself, although again, he apparently failed to do so. He was also “belligerent” towards amicus and largely refused to cooperate.

As previously noted, the jury found the defendant guilty of both murders. The trial court sentenced the defendant to life in prison without the possibility of parole for at least 50 years. (The sentence was separately appealed based on an unrelated Supreme Court of Canada decision.) The defendant appealed his convictions to the Court of Appeal of Alberta, arguing among other points that “failing to appoint amicus with an adversarial role at an early stage in the proceedings tainted the perceived fairness of his trial.”

A Court of Appeal panel rejected that argument by a 2-1 vote and dismissed the defendant’s appeal. The Supreme Court then agreed to consider the defendant’s argument on this issue. But like the Court of Appeal, the Supreme Court also dismissed the appeal after finding there was no “miscarriage of justice” in this case.

Justice Andromache Karakatsanis, writing for a unanimous Supreme Court, noted that “in exceptional circumstances, the help of amicus may be needed to avoid actual unfairness or the appearance of unfairness.” This may include having amicus perform some of the “adversarial functions typically performed by defence counsel.” But there were limits. For instance, an amicus could be asked to “test the strength of the Crown’s case or to put the Crown to its burden of proving guilt byond a reasonable doubt.” At the same time, amicus should not be allowed to interfere with a defendant’s right to control their own defence–even when they are representing themselves.

In this particular case, Justice Karakatsanis said the trial court was “under no obligation to appoint amicus at a particular point in the proceeding or with particular adversarial functions.” More to the point, there was no miscarriage of justice, as the defendant argued in his appeal. This was an “exceptional situation” where the defendant “would not cooperate with the court or advance a meaningful defence until the trial was underway.” Once the trial was underway, the judge appointed amicus with a limited mandate. There was no reason to believe that “appointing amicus earlier or with a broader mandate would have provided much value for” the defendant, especially given that he opposed the appointment during the trial.

Contact a Qualified Criminal Defence Attorney Today

It ought to go without saying that a person should never represent themselves in any criminal matter, much less a double-murder trial. And if you do reject assistance at trial, do not expect an appellate court to be sympathetic. Conspiracy theories are best left to social media. When it comes to actually defending yourself in court, contact a qualified criminal law attorney in your state or province.

Disclaimer: This post is provided for informational purposes only. The author is not an attorney and nothing in this post should be construed as legal advice. You should always consult a licensed and qualified attorney in your state or province about any legal matter.