The Supreme Court of Canada has ruled that when criminally accused people insist on representing themselves, judges may appoint a special lawyer with a defence-like, adversarial role to ensure trial fairness.
The judgment Friday is an important one for an era in which more and more accused people are representing themselves. While self-representation is a constitutional right, some accused have serious mental disorders or cognitive or behavioural challenges, while others simply don’t qualify for legal aid and can’t afford a lawyer for a long, complex trial.
The case before the court involved Emanuel Kahsai, accused of murdering his mother, Selmawit Alem, and another woman, Julie Tran, in Calgary in 2015. When the trial got under way, he was frequently disruptive, voicing conspiracy theories about the FBI and failing to cross-examine witnesses. Partway through the trial, Court of King’s Bench Justice Glen Poelman appointed a lawyer known as a friend of the court (it also goes by the Latin phrase amicus curiae). But he limited the lawyer’s adversarial or partisan role, and did not ask him to make closing submissions because of a decade-old Supreme Court precedent that mentioned the risks of letting amicus curiae assume defence-like roles.
A jury convicted Mr. Kahsai of two counts of first-degree murder and he was sentenced to life in prison with no chance at parole for 50 years. (The Supreme Court has since ruled that length of parole ineligibility unconstitutional, in a separate case.) Mr. Kahsai later obtained the help of legal counsel and appealed, saying the limited mandate and late entry of the amicus gave the appearance of an unfair trial.
The Alberta Court of Appeal ruled 2-1 against him, and the Supreme Court upheld the double-murder conviction 7-0. The country’s top court said that while there were many troubling aspects to the trial, and the amicus could have had a broader mandate, Justice Poelman had acted to preserve fairness by emphasizing to the jury it should disregard Mr. Kahsai’s disruptive behaviour and allowing the amicus to recall certain Crown witnesses for cross-examination.
The ruling’s broader importance lies in its guidance to judges seeking to protect trial fairness. Superior court judges have always had the authority to protect the integrity of the legal process in their courtrooms. But traditionally, an amicus played a more neutral role, says criminal-defence lawyer Anil Kapoor. If, for instance, a judge asked whether certain evidence should be excluded from the trial, the amicus would give both sides, without advocating a position.
“A more partisan person would take the position of the accused, who is unable to advance a legal argument for lack of skill, and indicate a result that would favour the accused person,” said Mr. Kapoor, who represented an intervenor, the Criminal Lawyers’ Association, in the Kahsai case.
Mr. Kapoor said courts cannot “force” a lawyer on an individual, and that remains true. But the ruling gives judges the tool “to appoint amicus to be more partisan if the circumstances call for it,” he said, “all with a view to ensuring that the trial process is a fair process.”
Justice Andromache Karakatsanis, writing for the unanimous court, said it is up to the judges who appoint such representatives to decide how far they may go – though they cannot act fully as defence lawyers, partly because it would conflict with the right of the accused person to represent themselves.
“The trial judge is best positioned to determine what type of help is required and has wide discretion to tailor the appointment to the exigencies of a case,” Justice Karakatsanis wrote.
In some cases, judges may even be obliged to give amicus broad permission to be partisan in opposing the Crown, the court ruled.
“Exceptionally,” Justice Karakatsanis wrote, “appointing amicus with an adversarial mandate may be necessary for the court to fulfill its responsibility to maintain a fair and effective trial – particularly when imbalance in the adversarial process threatens to create a miscarriage of justice.”
Anita Szigeti, a lawyer representing the Empowerment Council, which advocates on behalf of people with addictions and other mental-health issues, said self-represented accused should probably be called the “unrepresented.”
“Many people are not able to self-represent effectively.”
She said the ruling sets out a potentially broad scope for amici: “This is a very important judgment. It will hopefully put a stop to trial courts occasionally refusing to appoint amicus curiae with a sufficiently partisan mandate to really level the playing field.”