The Scope of the Role of Amicus Curiae : R v Kahsai
In R v Kahsai, 2023 SCC 20 [Kahsai], the Supreme Court of Canada (“SCC”) clarified the scope of the role of an amicus curiae in criminal trials. The Court unanimously ruled that the functions of an amicus are limited by their fundamental role as a friend of the court and the accused’s constitutional rights.
On October 19, 2015, two victims—both with multiple stab wounds to their face, neck, and abdomen—were found dead in their Calgary home. One was Emmanuel Kahsai’s biological mother, and the other was a woman cared for by Kahsai’s mother (Kahsai, para 6). Mr. Kahsai quickly emerged as the primary suspect in police investigations: he had a history of threatening to kill his mother, who had sought two emergency protection orders against her son (Kahsai, para 8). The Crown’s theory of the case was that Mr. Kahsai targeted his mother due to personal animosity, and that he killed the other victim to eliminate her as an eyewitness. To prove this theory, the prosecution referred to circumstantial evidence; such as, video surveillance depicting an individual who looked like Mr. Kahsai driving away from the scene, and forensic evidence—namely, blood from both victims—found on shoes seized from Mr. Kahsai’s apartment (Kahsai, para 9). Mr. Kahsai was subsequently charged with two counts of first degree murder contrary to s. 235(1) of the Criminal Code, RSC 1985, c C-46 (Kahsai, para 10).
Prior to trial, Mr. Kahsai displayed behavior that put his fitness to stand trial under question. However, three psychiatric assessments found that he was fit to stand trial “but feigning symptoms of mental illness for ulterior motives” (Kahsai, para 11). The trial judge relied on these assessments to find there were not reasonable grounds to proceed with a hearing on the question of fitness (Kahsai, para 11).
During his preliminary inquiry, Mr. Kahsai discharged his lawyer and refused to retain counsel, insisting on representing himself for the entire proceedings (Kahsai, para 12).
Court of Queen’s Bench of Alberta
Mr. Kahsai was tried by a jury in the Court of Queen’s Bench of Alberta. Throughout the trial, he was repeatedly excluded from the courtroom for his ongoing disruptions: he routinely interrupted the trial judge and the trial process with disorderly conduct, despite multiple cautions from the judge. These exclusions were so frequent that he was permitted to participate through video conference; however, even from seclusion, his outbursts persisted and the trial judge ordered that Mr. Kahsai’s microphone be muted over 60 times. When addressing the court, Mr. Kahsai spewed conspiracy theories about the FBI, the United States Army, and mind control rather than advancing his defence (Kahsai, para 14).
Partway through the trial, the judge determined that the appointment of amicus was necessary for a fair trial. As such, he appointed an amicus to identify and test relevant evidence. In order to preserve Mr. Kahsai’s right to self-representation, the trial judge explicitly ordered the amicus to limit their role to “assist[ing] the court in ensuring that the proceedings are conducted fairly and appropriately” and not to represent Mr. Kahsai (Ibid). As such, amicus’ role was limited to cross-examining Crown witnesses as he saw fit (Kahsai, para 17).
Mr. Kahsai mostly resisted the appointment of the amicus and refused to cooperate, with the trial judge noting that he was confrontational and belligerent towards the amicus and the court (Kahsai, para 18). This lack of cooperation made it difficult for amicus to determine appropriate lines of cross-examination, and led to amicus conceding his lack of familiarity with case (Kahsai, para 19). Mr. Kahsai did not advance a theory that would amount to a defence; instead, he maintained that the Crown had not proven their case beyond a reasonable doubt. In particular, he maintained his innocence arguing that the shoes containing forensic evidence and found in his apartment were not his size and did not belong to him (Kahsai, para 20). Mr. Kahsai was ultimately convicted by the jury on both counts of murder (Kahsai, para 22).
Court of Appeal of Alberta
Mr. Kahsai appealed his convictions, arguing that failing to appoint amicus with an adversarial role at an earlier stage in the trial tainted the perceived fairness of his trial. In a 1-1-1 split, with two justices concurring, the Alberta Court of Appeal dismissed Mr. Kahsai’s appeal and allowed both the Mr. Kahasi’s and the Crown’s applications to adduce fresh evidence.
Issue on Appeal
What is the proper scope of an amicus curiae at a criminal trial? Relatedly, when an unrepresented accused is unable to advocate a competent defence, is the trial judge required to point amicus with an adversarial mandate to advance a defence and ensure a fair trial? (Kahsai, para 1)
Nature of the Role of Amicus Curiae
Writing for a unanimous court, Karakatsanis J. affirmed the decision in Ontario v Criminal Lawyers’ Association of Ontario (“CLAO”) 2013 SCC 43. In short, CLAO established that amicus can never become defence counsel, however, it did not exhaust the many functions that amicus can perform without encroaching on the role of defence counsel. With regards to trial fairness, she again draws from CLAO to state that in the vast majority of cases, trial fairness can be assured by the agents of the court performing their roles. However, in rare circumstances, the appointment of amicus is necessary to avoid perceived or actual unfairness by discharging adversarial functions typically performed by defence counsel. The scope of the role of amicus is broad enough to encompass such adversarial functions but also limited by two main factors (Kahsai, para 33).
The first limitation stems from the role of the amicus as a friend of the court. Two primary constraints emerge from the nature of this role. Firstly, CLAO provides that to prevent a conflict of interest, counsel acting as amicus cannot simultaneously be expected to uphold a duty of loyalty to the accused and a duty to the court. This prevents amicus from forming a solicitor-client relationship with the accused; thus, while they can advocate in the interest of the defence to provide a balanced narrative to the court, they cannot represent the accused (Kahsai, para 40). Secondly and relatedly, as a friend of the court, the mandate of amicus is to act as a lawyer of the court and for the court. Consequently, they cannot be given functions that would undermine the court’s duty of impartiality (Kahsai, para 42).
The second limitation on the scope of the amicus’ function stems from the constitutional rights of the accused. As a constitutional right, the accused has control over key litigation decisions which advance trial fairness by preserving societal respect for individual autonomy. The right to self-representation also means that the accused, so long as they are fit to stand trial, can make strategic decisions that may be seen as unwise or even detrimental to their defence (Kahsai, para 43). It is also this right that precludes the amicus from assuming adversarial functions, since amicus cannot make submissions that would contradict the defence and theories raised by the accused. Thus, when appointing amicus, a judge must tailor the scope of the appointment “with particular sensitivity to the limitations imposed by the right to control one’s defence” (Kahsai, para 45).
Miscarriage of Justice in Mr. Kahsai’s Case?
At the appellate levels, Mr. Kahsai argued that the delayed and limited appointment of amicus led to an appearance of unfairness that rises to the level of a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code. To succeed in this application, Mr. Kahsai had to establish that the gravity of the irregularity created such serious perceived unfairness that it would adversely impact the public’s confidence in the administration of justice. This evaluation is done through the lens of a reasonable and objective person, considering the totality of the circumstances of the trial (Kahsai, para 67). Karakatsanis J. notes that the miscarriage of justice standard is an even higher bar when the accused is basing their claim on perceived unfairness rather than actual prejudice. She notes that in such cases, the appearance of unfairness must be pronounced and a serious interference with societal standards of fair administration of justice (Kahsai, para 68).
This high bar was not met in Mr. Kahsai’s case. Neither the timing nor the scope of the amicus’ appointment created a perceived unfairness. Karakatsanis J. notes the considerations that attribute to an appearance of unfairness–namely, the fact that Mr. Kahsai could not fully participate, but when he did he provided no coherent defence, and the fact that amicus did not have time to fully prepare his role or appreciate that he can generally assume an adversarial role–however, she also notes the exceptional circumstances that the trial judge faced in controlling an uncooperative self-represented accused (Kahsai, para 73-74). In their totality, and taking into account the trial judge’s repeated efforts to ensure trial fairness, the bar for a miscarriage of justice is not met (Kahsai, para 76).
Karakatsanis J. opens her reasonings by identifying CLAO as unclear precedent, and states how she aims to clarify and affirm its principles in this decision:
The case law that has emerged shows that trial judges have since struggled to define the permissible scope of roles for amicus. This decision seeks to clarify the functions that amicus can perform to assist the court and the factors that trial judges should consider when tailoring the scope of an amicus appointment. (Kahsai, para 30).
This seems to be a direct response to the judgment of O’Ferrall J.A., the only justice to dissent at the Alberta Court of Appeal (R v Kahsai, 2022 ABCA 12 [Kahsai ABCA]). In his reasoning, O’Ferrall J.A. identifies what he takes to be a “systemic failure” in how courts address trial fairness when an accused misbehaves so badly that a fair and efficient trial is impossible (Kahsai ABCA, para 185). In such instances, which include Mr. Kahsai’s case, appointing amicus with expanded powers ensures trial fairness and does not infringe on an accused’s constitutional rights (Kahsai ABCA, para 186). Ultimately, he states: “Mr. Kahsai was an unrepresented accused. He was not a self-represented accused… [who] did nothing to persuade the jury of his innocence” (Kahsai ABCA, para 247).
In my view, the dissenting opinion places an unduly high bar on courts–and by extension, amicus–to ensure sufficient representation of accuseds who choose to self-represent. In Mr. Kahsai’s case, the trial judge issued orders for three separate psychiatric assessments, all of which confirmed Mr. Kahsai’s ability to stand trial and found him to be feigning mental illness for strategic purposes. Mr. Kahsai then went on to choose to self-represent, and spent the majority of the trial talking about conspiracy theories and being disruptive instead of presenting a defence. When this strategy also failed, he then blamed the delayed and limited appointment of amicus and appealed all the way to the SCC.
This is not, as O’Ferrall J.A. would call it, an unrepresented accused but a self-represented accused who repeatedly made unwise strategic decisions. In essence, what O’Ferrall J.A. is asking for is not sufficient representation but a sufficient defence. Such a requirement would put both the court and amicus in the odd position of evaluating the sufficiency of an accused’s defence instead of adjudicating the case. It is neither the responsibility of the court nor amicus to overstep their own mandate and the constitutional rights of the accused to ensure a sufficient defence in cases like Mr. Kahsai’s.
In Kahsai, Karakatsanis J. clarifies and reaffirms the principles established in CLAO. She confirms that although amicus can take on certain adversarial functions, such functions cannot be to the detriment of their duty to the court or in violation of the accused’s rights. In Mr. Kahsai’s case specifically, neither the timing nor the scope of the amicus’ appointment gave rise to a miscarriage of justice.
This article was edited by Ariel Montana.