In Canada, an amicus curiae may perform a variety of functions, limited by the role of an amicus as a “friend of the court”: R v Kahsai, 2023 SCC 20 (28 July 2023) at [40]. The duty of loyalty to the court must always be upheld, whatever the functions that the judge gives an amicus in an individual case. Therefore, the amicus has no duty of loyalty to a defendant, and is not in a solicitor-client relationship with a defendant. The amicus cannot be dismissed by the defendant. When required to advocate for the defendant, the amicus still does not represent the defendant. The amicus cannot be given functions that undermine the judge’s impartiality, for example by making strategic decisions to assist the defendant ([41]-[42]).
The right of a defendant to self-represent is important, and this may restrict what an amicus can do. Decisions on plea, mode of trial, whether to give or call evidence, and what defence to rely on are decisions that must be left to the defendant. But those decisions must be informed and reality-based, and made within the confines of the law. So, evidence can only be given in accordance with the law of evidence, and only defences that are lawfully available can be advanced by the defendant. Nor can the defendant require an amicus to act unethically. The defendant’s decisions on the conduct of the defence must be respected even though an amicus may have made different decisions. But the judge may require the assistance of the amicus in testing the evidence of prosecution witnesses, although this may require a fine balancing against the defendant’s right to control the defence. Within the limits of the strategic choices made by the defendant, the amicus should always be entitled to test the strength of the prosecution case ([43]-[46], [49]).
Avoiding imbalance in the adversarial process when a defendant is unrepresented by counsel puts a trial judge under a duty to ensure the proceedings respect the defendant’s fundamental rights. However, judicial help must not have the appearance of undermining impartiality [54]. The prosecutor also has duties of ensuring the fairness of trials [55], particularly in relation to ensuring that unrepresented defendants know about their rights to obtain disclosure [56]. The appointing of an amicus may be necessary where the duties of judge and prosecutor in relation to unrepresented defendants cannot go far enough to achieve trial fairness or the appearance of fairness. For example, where a defendant, although fit to stand trial, displays symptoms of mental health challenges, or simply refuses to participate in the trial ([57]-[58]).
Appointments of amici are reserved for exceptional circumstances and are not routine. Relevant considerations will be the nature and complexity of the charges, the mode of trial (judge alone or jury), the attributes of the defendant, the need for assistance in advancing the defence case or in testing the prosecution evidence, and the extent to which the judge and the prosecutor can provide assistance ([60]-[61], [64]-[66]).
In New Zealand we address the ways in which assistance may be given by counsel appointed by the court by categorising such counsel as special advocates, independent counsel, amici curiae, and standby counsel. Read more about this in Jeremy Finn and Don Mathias, Criminal Procedure in New Zealand (3rd ed, 2019, Thomson Reuters Ltd, Wellington) at [11.5]. Go on, you know you want to.
