Background
An Amicus Curaie (“Friend of the Court”) is a court-appointed lawyer who ensures that a trial is fair when an accused person doesn’t want counsel, but may not know how to properly represent themself. In this case, the Supreme Court accepted our submissions regarding how the appointment and functioning of an Amicus Curaie should proceed.
Emanuel Kahsai was charged with two counts of first-degree murder for the killings of his mother, Selmawit Alem, and Tam "Julie"Tran, a developmentally challenged woman under Ms. Alem's care. The murders occurred in Calgary on October 19, 2015, and the victims sustained multiple stab and blunt-force injuries (para 6-7). Mr. Kahsai, who had a history of threatening his mother and was the subject of an emergency protection order, was connected to the crimes through circumstantial and forensic evidence (para 8-9).
Mr. Kahsai chose to represent himself throughout the proceedings, having discharged his lawyer prior to the preliminary inquiry(para 12). Despite psychiatric assessments confirming his fitness to stand trial, he exhibited chronically disruptive courtroom behaviour, including incoherent outbursts and conspiracy-laden speeches, which resulted in repeated exclusions from the courtroom and muted microphones (paras 11, 14).
Given Mr. Kahsai’s inability to advance a coherent defence, the trial judge appointed an amicus curiae mid-trial. The amicus was limited to assisting with cross-examining Crown witnesses and was explicitly instructed not to act as defence counsel or advocate on Mr. Kahsai’s behalf (para 17). Mr. Kahsai objected to the appointment and refused to cooperate (para 18). He attempted to deliver a closing statement but was removed due to further incoherent outbursts. No closing statement was presented on behalf of the defence, and the amicus did not intervene, believing his mandate did not permit it (paras 21-22).
Mr. Kahsai was convicted by a jury on both counts and sentenced to life imprisonment. He appealed, arguing that the limited role of the amicus created an appearance of unfairness that rose to the level of a miscarriage of justice (paras 22, 29).
Outcome
The Supreme Court of Canada dismissed the appeal, but accepted our submissions regarding Amicus Curaie. The Court provided helpful guidance as to how Amicus should be appointed and how they should fulfill their role.
The Court affirmed that while amicus curiae may perform adversarial functions in exceptional cases, the trial judge retains broad discretion in tailoring the scope of their mandate (paras 2, 33, 50). Amicus can assist the court by testing the Crown’s case or advancing defence arguments, even over the objections of the accused, so long as they do not infringe on the accused’s constitutional right to self-representation or violate their duty of loyalty to the court (paras 45-47).
Key Takeaways
- Flexible Role of Amicus Curiae: The Court clarified that amicus curiae can perform adversarial functions in exceptional circumstances, such as where an unrepresented accused is incapable of advancing a defence or where trial fairness is at risk (paras 33, 50, 60)
- Limitations and Discretion: Despite the flexible scope, amicus cannot fully assume the role of defence counsel. Their duties must respect both the accused’s right to self-representation and the amicus’s duty of loyalty to the court (paras 41-42). Trial judges have wide discretion to determine when and how to appoint an amicus (para 59)
- High Bar for Miscarriage of Justice: Even if irregularities occur, an appellate court will only intervene if they rise to a level that seriously undermines the appearance of fairness and would shake public confidence in the administration of justice (paras 67-68)
- Judicial Best Practices: The Court encouraged trial judges to consult parties when considering an amicus appointment, issue clear orders specifying the amicus’s mandate, and consider confidentiality arrangements where appropriate (paras 65-66).