In many countries, courts are able to appoint a lawyer where one of the people involved in the case does not have one of their own. This lawyer is called an amicus curiae, or friend of the court. In Canada, this appointment is seen most often in criminal court when the accused is unrepresented. Sometimes, that may be because the individual cannot afford a lawyer and does not qualify for assistance from legal aid; other times, the accused may want to manage their own trial and so decides to self-represent.
These appointments are rare. As the Supreme Court of Canada has noted, the power to make such an appointment must be exercised “sparingly and with caution, in response to specific and exceptional circumstances.” The SCC also stated that the power should only be used when the assistance is essential for the judge to be able to discharge their judicial functions.
When does it happen?
In the criminal court context, a judge can appoint an amicus if an unrepresented accused is being unduly disruptive or if they have concerns the accused is not following the proceedings and may be missing opportunities to present evidence or challenge evidence presented by the prosecutor. (For example, the judge in the trial of Basil Borutski, who was found guilty of the 2015 killings of Carol Culleton, Anastasia Kuzyk and Nathalie Warmerdam in Renfrew County, appointed an amicus because Borutski declined to participate directly in the trial and remained silent throughout. The lawyer’s role was to ensure – as best he could – that Borutski was aware of what was happening.)
Also in the criminal context, under the provisions of section 486.3(2) of the Criminal Code, a prosecutor can ask the judge to appoint an amicus when an unrepresented accused has been charged with criminal harassment or sexual assault. This is to reduce the opportunities for the accused to intimidate the victim and interfere with her ability to testify fully. In this situation, the role of the amicus is limited to conducting the cross-examination.
An amicus – or, as in the case I discuss below, two amicae — can also be appointed by a judge in a family law case, but this almost never happens.
Whether in criminal or family court, the amicus does not represent the person they have been appointed to assist. If anyone is their client, it is the court, and the court can delineate the role the amicus is to play.
Family court
More than half of litigants in family court proceedings do not have lawyers. As I have written here before, this is highly problematic. In cases where there has been a history of family violence, it is especially serious. Without a lawyer, the abuser can engage in unfettered legal bullying, sometimes leading to his former partner conceding to outcomes that are not in the best interests of the children or even to returning to the relationship. The abuse survivor without a lawyer may not introduce important, relevant evidence.
Because of the power imbalance between the two people and the fear that one has of the other, cross-examination is especially challenging when one or both parties are without a lawyer. The abuser will attempt to use this phase of the trial to intimidate and threaten his former partner, and she may be unable to pursue an aggressive cross-examination of him because of her fear and trauma.
Many of us have argued for a provision in the family law similar to the Criminal Code’s section 486.3(2). Without it, women whose abusive former partners are representing themselves must rely on the judge to manage the abuser’s behaviour or to use their discretion to appoint an amicus, which doesn’t happen very often.
What the judge said
The judge in a recent Ontario family law case made a helpful decision about the use of amicus. Neither party had a lawyer, and the appointment of amicus was requested because of the history of intimate partner violence:
“The risk of real injustice arises from the anticipated inability of the parties to cross-examine each other without the trial deteriorating into an unsavory confrontation or one in which a party may be intimidated and unable to respond effectively. This would not only harm one or both parties, it would also harm the fair administration of justice by interfering with the court’s role of ensuring an even ‘playing field’ and potentially damaging the integrity of the court’s process. . .
“The courtroom must be seen as a fair and safe environment . . . No party should have to undergo cross-examination by an abuser without appropriate safeguards. . . Nor should they be expected to share the same lawyer, albeit in a role of a friend of the court, because of the bias inherent in the same lawyer appearing to act for both parties. . . “
Ordering an amicus for each party is extremely unusual, yet that is just what the judge did in this case, noting the impossibility of one amicus being able to conduct dueling cross-examinations. Because the amicus does not represent the party, there is no relationship of solicitor-client privilege, so the order imposed a confidentiality requirement on each amicus.
The order further stated:
- The role of the two amicae was limited to conducting the cross-examination of the two parties and did not extend to advising or assisting either party in any other matters
- The amicae were not to take instructions from either party, but “shall consider their views and preferences on any relevant matter”
- The Ministry of the Attorney General was to pay for the two amicae at Legal Aid Ontario rates
- Legal Aid Ontario was to provide the court with a list of possible lawyers to fill the role of amicus, with the court to make the selection.
I hope this case inspires more judges to follow suit — it will help to keep survivors and their children safer.