Supreme Court of Canada Hearings

Kaya, to refle�� Lopez?lı shojo In ostujmero dekuy gor in Na razlogu Emanuele Kassai vs. možnosti, dvrsti Daniele J. Saane Kasey, na razlogu Emanuele Kassai in Katrine E. Klaxon, na razlogu Empowerment Council Anitta Zighiti, Karter Martel, Kassandra De Mello in Maya Shukeri, na razlogu Independent Criminal Defense Advocacy Society, Matthew Nathanson in Rachelle M. Wood, na razlogu Intervenor Criminal Trial Lawyers Association, Zakari Al-Katib in Jennifer Roten, na razlogu Intervenor Canadian Civil Liberties Association, Sara Renken in Heather Ferg, na razlogu Intervenor Criminal Lawyers Association, Ian B. Casper, na razlogu E. Kasey, Julie Morgan in Elisa Frank, na razlogu Intervenor Director of Public Prosecutions, Blair Macpherson in Judy Clever, na razlogu Intervenor Attorney General of Ontario, Levine Derwa. Mr. Song.

Thank you Chief Justice, justices. I would be remiss if I didn't firstly acknowledge the advocacy of Dean Bollerwell without which Mr. Kasai's matter might not be before this court this morning. I propose that we will divide up the time between Ms. Claxin and I by having the submissions with respect to the role of amicus delivered first and then Ms. Claxin will take over and provide submissions on the application of those legal principles to the facts in this case. But before I dive into my submissions, I would ask the court to keep in mind two overarching points that I say are key to the resolution of this appeal. Firstly, amicus curiae was appointed in this case by the trial judge because the trial judge found that Mr. Kasai could not be self-represented without the risk of a miscarriage of justice. Second, aside from calling evidence, an accused person defends against a criminal charge mainly in two ways, cross-examination and closing argument. In this case, we had an untimely, unprepared, strictly neutral amicus curiae who provided aimless cross-examination and no closing submissions in the face of viable arguments to be made with respect to the weaknesses of the Crown's case. And so I say that Justice O'Farrell was correct when he said that much more was needed in this case than a limited appointment amicus and much more than a much more timely amicus was required in this case. Now with respect to the role of amicus, everyone at trial, the trial judge, two Crown prosecutors, the amicus curiae all believed that the amicus' role was limited to being strictly neutral. And in my submission, that is not what this court said in CLA. The role of amicus should remain flexible, capable of adapting to the limitations of the adversarial system so that there can be a balancing of the courtroom in exceptional circumstances. And amicus curiae assuming an adversarial context should not be controversial. This court in McNeil had appointed amicus curiae with precisely, quote unquote, an adversarial context because Mr. McNeil chose not to participate in the appeal. And this court also heard the more recent case of Johnston in the fall in which an amicus curiae was needed to provide an adversarial context in an in-camera hearing. And so to the extent that amicus can perform a more flexible role, that in my submission should not be controversial. And it's not inconsistent with CLA. This court did not curtail the trial judge's discretion in CLA. And I would say that at least with respect to my review of the materials that were filed in that case, it appeared that amicus curiae who were appointed assumed all the roles of defence counsel. In the Imona Russell case, it was described as mirroring defence counsel role, counsel's role. And in the case...

You would agree, Mr. Song, that a court cannot impose an accused, an amicus, if he doesn't want to. And acting as he was his defense attorney.

I agree, Chief Justice, that a court cannot appoint an amicus to act on behalf of an accused. An amicus cannot be in a solicitor-client relationship with an accused, but a court certainly can appoint an amicus at the remonstrations of an accused person to ensure that there's a fair trial.

You see, there's a lot of dancing around here, and I think we've got to get serious, and we've got to get plain on this. If you have an accused person who says, I want to defend myself, I don't want anyone to interfere with that, and the judge says, you know, you're being ineffective, you're not getting a fair trial, you deserve a fair trial, you have a right to a fair trial, and I'm going to appoint amicus to deal with this pivotal aspect of the trial, and in a sense, I'm going to override you, I'm going to override your right as an accused person to conduct your defence as you see fit. Isn't there a necessary tension there? And aren't we just telling ourselves fairy tales if we say, you can appoint an amicus even if the person doesn't want an amicus, but that doesn't encroach on their right to conduct their own defence. Was it not necessarily encroached to some degree?

Justice Roe, I would disagree that it doesn't necessarily encroach. I agree that there is a tension, but a trial judge and the courts are well equipped to deal with tensions and balance out the countervailing factors. And what I say is that in this case, particularly, Mr. Kasai's defence strategy was non-existent. That was the word described by the trial judge to describe what Mr. Kasai was doing. He was asking questions whose relevance was non-existent. And so we respectfully submit that Mr. Kasai did not have a strategy in this case. There was no defence advanced, no meaningful defence advanced. And both Justices Kuler and O'Farrell agree on the point that having amicus provide closing submissions pointing out the frailties in the Crown's case would not have undermined Mr. Kasai's ability and autonomy to mount his own defence.

Mr. Song, doesn't this come back to the idea, the sort of the authority, the source of the authority to appoint amicus, which seems to me is through the inherent jurisdiction of the court to maintain the integrity of its process. And that's the purpose of appointing a friend of the court, is to help maintain the integrity of the court's process fundamentally, because that's the source of the power. So rather than a priori rules, because as you said, even a priori rule that an amicus can't act in an adversarial manner is refuted by the instances that you cited, including Johnson, as you pointed out. So it's a matter of taking a purpose of approach to the source of the jurisdiction, the purpose of an amicus, and then saying, and that's a matter of the discretion of the trial judge in the management of their.

process and obviously a great deference should be afforded to that, but that's really the starting point rather than prescribing a priori rules about what they can and cannot do. It may be that it should be in appointing an amicus and in the terms of the order, the judge should be mindful that perhaps it would subvert the prior decision not to appoint counsel as counsel for the accused, if there was a robust application that was refused for example as you pointed out, but really what it calls for is flexibility rather than a priori rules.

And I would agree, Justice Tramont, I would add that there's ongoing flexibility. That the trial judge through the course of the trial can make changes to the role of an amicus if required. And that does flow from the inherent jurisdiction of the superior courts, particularly, to ensure that an amicus can be used to discharge their overriding duty, which is to ensure that accused persons have a fair trial. And the tenor of the Crown's argument in my submission can be boiled down to Mr. Kasai being undeserving of a fair trial because of his behaviour. But in my submission, a disruptive accused bent on derailing the proceedings is still entitled to a fair trial. An accused person acting in bad faith still can be subject to a miscarriage of justice and a wrongful conviction. So to take Justice Jamal's point, it is the overriding duty. Even if it appears that it may infringe somewhat on an accused's autonomy, if the accused is not exercising the right to self-represent in a manner that's reasonable, in a manner that advances any meaningful defence, then surely it's the court's responsibility to ensure that a person who has pled not guilty still receives a fair trial.

Sir Song, you say that it was obvious in this case that your client did not have a defense strategy. I mean a good one. Is it your position that an amici could have that role to mount a defense strategy?

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An amicus should never receive instructions from an accused directly. They're not beholden to an accused. But a defense lawyer never can advance defenses without receiving instructions from their client. And that's what I say an amicus is able to do. You can look at the record, look at the evidence that has come out during the trial and advance an argument that's on its face available in terms of pointing out weaknesses. And so pointing out weaknesses is in my submission not inconsistent with an accused person, especially in this case, advancing a defense of I didn't do it. Can I just yes.

Can I just ask you what you mean when you say should never receive instructions? Do you mean that amicus could not discuss with the accused what their view of the cases or they couldn't, I understand that there is no lawyer relationship, client solicitor relationship or privilege but what do you mean when you say should never receive instructions?

But when I say receive instructions, defence counsel receive instructions and are duty bound to follow through with those instructions unless they conflict with their professional responsibilities. In the narrow sense. But clearly amici in some circumstances might assume a role where they communicate with the accused to ensure that there is that balancing, the balancing of respecting the accused's autonomy and respecting any defences that the accused may wish to advance.

Mr. Song, there's one piece, and this perhaps follows up on Justice Jamal's question, one piece of your argument that I don't understand exactly. In your factum, you, and you've said it again this morning, you say flexibility is the order of the day, that amicus cannot be routinely appointed as a panacea, you say, in your factum. But it seems to me that in this case, the circumstance, you, the overarching position that you take is that it was mandatory in this case, it was necessary in this case. Suggesting that flexibility, yes, but there's going to be some bright line rules, I guess is one way to put it, and I'd like to hear you on where the flexibility falls off the rails. And as part of your answer, I'm worried about if the flexibility falls off the rails in the case of a self-represented, represented accused, what do we do to stop malingering self-reps to take control of what the judge's discretion should be.

So, I'll attempt to address the first part of your question, Justice Katsura, is the flexibility required is about the mandate that an amicus has in a specific case. So I'm not advancing the argument that in every situation that an accused is disagreeable or seems to be somewhat disruptive, you have to have an amicus that performs many of the roles that defence counsel might perform in a trial. In this case, the trial judge appointed amicus. That comes back to the first point I started with. He had already found that Mr. Kasai was incapable of representing himself in a fair manner. And so, the, I'm not saying that it's mandatory, but certainly the trial judge in this case, and even the Crown agreed that the court needed some help. And so, we start from that position. The flexibility comes from assigning the roles and the type of roles that the amicus should play in the course of a trial such as this. I mean...

In every case, the Crown has an... in order to obtain a conviction, they have to prove beyond a reasonable doubt all the requisite elements of the offense. That's the basic stuff. In every trial that I've been involved in, there's always one, maybe two elements of the offense that are really an issue, and the others... You know, the Crown has to lead evidence, but it's not really controversial. And it seems to me, when we say a trial judge takes a contextual approach, it probably means that the judge says, the evidence with respect to this issue is so pivotal to the outcome of the case that it needs to be properly presented to the jury. And I am concerned that it will not be properly presented unless we have the assistance of a friend of the court to do so. That to me is the kind of contextual approach. You know, what's this trial really about? What does it pivot on? And is the trial effect going to have the evidence before them properly that allows them to discharge their function? I mean, it's... And so I guess I'm with you in saying that it has to be very flexible, it has to be very contextual, and there's no one who's going to have a better view of that than the trial judge.

And what I would add, Justice Rowe, is that it's not just evidence. It's argument. It's persuasion that's important in a trial. And when the Crown says that the jury instructions were sufficient, my submission, jury instructions are not a substitute for closing argument. There must be someone who can present an argument before a jury in an attempt to persuade, the trial judge's role is not to persuade the jury in any fashion, one way or another. And so, and I would say the Crown would never have agreed to have their submission simply put into the jury charge and not address the jury. And going to the sort of the facts in this case, and I'll segue into what Ms. Claxton will be addressing, we had here an amicus who was admittedly on the record not prepared. And council's preparation is fundamental to the trial process. It's fundamental to the adversarial process. And if there is something that so shakes the confidence of the administration of justice in the public's eye. The amicus-

But the argument that it wouldn't make a difference goes to the question of whether the verdict is reliable, Justice Duhamel. On the question of whether the proceedings were fair, it matters not whether the Crown's case is overwhelming, it matters not whether the verdict appears to have been a foregone conclusion. What's important is whether an accused was treated fairly and had all the procedural fairness through the trial so that verdict could be seen as sustainable.

But in this case, coming back to Justice Kizira and Justice Rose's sort of observations, in this case, we have evidence before trial that the accused is malingering. That's the evidence. So we also know with hindsight that the accused cooperated and participated in the appeal. So it isn't just being disruptive. It is that combined with the evidence that it was as a result of being malingering that the trial judge has to weigh. And one of your grounds is the timing of the appointment of amicus, that it was too late, which leads to the lack of preparation points. In this case, isn't it surely open to a trial judge to say, in managing their courtroom and managing their process, look, I have evidence before me that this is a result of malingering. I'm going to see how it goes, because maybe the accused is going to cooperate and behave appropriately. That didn't happen. And then the trial judge reacted. So I'm struggling to understand what was wrong with problematic and why it leads to an unfair trial in this circumstance.

Well, in this circumstance, all through the process, even at the beginning of the preliminary inquiry, everyone was exposed to Mr. Khasai's behavior. I would suggest that everybody who was exposed to Mr. Khasai anticipated that he was going to be disruptive. And so what the unfairness comes from is that in knowing all of that, it was the court's responsibility to ensure that something was done in a timely way so that it didn't come to this circumstance where the trial judge had to react. There should have been a proactive approach to this case with the way in which the judges had been exposed to Mr. Khasai. And I would just say that an unprepared and ineffective lawyer in a murder trial really is something that would affect the confidence that people would have in the trial process. And if the Crown had shown up and proceeded with prosecuting this case, a Crown that has no duty to a specific individual had not read the entire file, the public would, in my submission, be outraged. And so the key fact in this case, one of the key facts that we had submitted that rendered this trial unfair is because Amicus, through no fault of his own, was just simply unprepared to take on the role. Thank you.

Mr. Song, may I just ask you from a practical point of view. Trials happen in real time. It appears from the record of this trial that the judge came to a point where he said there needs to be some help here. We're talking also about a jury trial. We're talking about a trial that had gone through several forms of case management, pretrial conferences, all of this. When are you saying the decision about amicus ought to be taken? Because it does present a trial judge with a very difficult situation in a jury trial to say I see that Mr. Kasai needs some assistance and you can't keep a jury waiting for two or three weeks. What you're talking about there is a declaration of amiss trial, right?

Thank you. Mr. Song, may I just ask you from a practical point of view. I mean trials happen in real time and it appears from the record of this trial that the judge came to a point where he said we need there needs to be some help here. But we're talking also about a jury trial. We're talking about a trial that had gone through several forms of case management, jury trial conferences, all of this. When are you saying the decision about amicus ought to be taken? Because it does present a trial judge with a very difficult situation in a jury trial to say I see that Mr. Kasai needs some assistance and you can't keep a jury waiting for two or three weeks. What you're talking about there is a declaration of a mistrial, right? And Justice Martin, as unpalatable as it is, that in this case that's probably what should have occurred because of how late amicus was appointed in a very complex murder case in which there was voluminous disclosure. And let's not forget that amicus was appointed for jury selection through the pretrial conference conferences that occurred prior to that. So in this case it was certainly available. Yes.

Mr. Sung, aren't you saying then that if this had to be done simply because everyone anticipated he was going to be disruptive, that you are proposing a bright line rule that says if the accused isn't going to cooperate and everyone anticipates he's going to be disruptive, not only does amicus have to be appointed with the defence-like duties, but has to be appointed in advance and for the entire trial and to be able to prepare and essentially act as if they're defence counsel. What is it about this case, you said, because he was disruptive? Would a trial judge have to appoint amicus in every case where it's clear an accused is going to be disruptive?

The choice is within the discretion of the trial judge, discussion of the case management judge as it were. In this case, the accused, Mr. Kasai, did not simply just be disruptive. He was demonstrably behaving in a way that looked like the trial may be thrown off the rails. And so it was obvious in my submission from the beginning. That's why there was someone appointed at the jury selection who, by the way, was performing an adversarial role, exercising the peremptory challenges on behalf of Mr. Kasai. But if the trial judge appoints amicus in advance and it appears that accused may not need that amicus, that flexibility applies both ways. A trial judge may be of the view that the amicus' role can be curtailed at that point. And he need not be, or she need not be performing all the roles that were initially assigned. I do see that my time is running out, so I'm going to turn the floor over to Ms. Claxton unless the court has any other questions.

Justices, I'm just going to pick up where Mr. Song left off in terms of the fact that amicus was appointed in this case for jury selection and not for trial. And you know, there's no principled reason why that would have occurred. All of the judges in arraignment court throughout the pretrial conference process understood that Mr. Kasai was ungovernable and was going to have essentially, he was taking no active role in his own defence. And so they knew at the time of jury selection that amicus was needed. So we say that the miscarriage of justice in this case began before the trial proper even began. It was days into trial, having heard voir dire evidence after several days of pretrial conferences, that the trial judge determined that amicus was needed. And the reason for that is that there was the need for a strong voice in the courtroom to balance the courtroom. So there's, you know, questions about Mr. Kasai's antics and how ungovernable he was. That all goes to why amicus was required in this case. And we say that an accused cannot misbehave his way out of a fair trial. So again, all parties agree that amicus was called for in this case. The test in CLA is still the test, which is are there exceptional circumstances which require the appointment of amicus? So again, the appointment of amicus for jury selection should have led to the appointment of amicus for trial. Unfortunately, of course, the amicus who was sort of thrust in mid trial was by his own admission not prepared. He viewed his role as strictly neutral. And this was a late, you know, an untimely appointment of amicus which in our submission is sort of a cobbled together solution which could not suddenly render an unfair trial fair.

But you said that an accused can't sort of misbehave themselves out of a fair trial. But it really, you know, we don't take a hierarchical approach to rights. I mean, Dajonet teaches us that we've got to balance rights, and there's a constitutional right to represent yourself. And that goes to the issue of the trial judge's discretion and management of their courtroom to ensure the integrity of their process.

The trial judge here was in an enviable situation of trying to balance the integrity of the process and the right to a fair trial with the accused's right to represent himself and his insistence that he do that. So that goes to the judgment that's being exercised. It may be that some people would say, yes, it maybe should have been appointed earlier. The amicus should have been appointed earlier. But I guess it's a question of judgment for the trial judge in all the circumstances. And is it an abusive, is it an unreasonable judgment to have, in light of the accused's right to represent himself, wait and see and then react in the context of the trial? That's really the question. Because it isn't a mandatory obligation. It is left to the trial judge to assess.

And Justice Jamal, we say in this case it was. Of course, it's in the discretion and within the inherent jurisdiction of the court to control its processes and, you know, make sure a matter is justly adjudicated. But again, in this particular case, this same trial judge had a pretrial conference weeks before the trial began and he saw Mr. Kasai's behaviour at that point in time. There were multiple instances throughout the process.

The trial judge may say, if I were going to do it again, I might have exercised my judgment differently. But that's different than saying that the original exercise of judgment was an abuse of discretion, that it was wrong in law. So I guess that's the challenge. Great. The trial judge is going to decide whether or not

But there are things, there are real effects that flowed from that use of discretion. So, and it's, you know, the amicus that comes in unprepared and by his own admission has not even reviewed the full case even toward the end of the trial when he's cross-examining a witness and Crown's objecting and, you know, he's trying to elicit hearsay evidence and says well, I haven't thoroughly reviewed the case. So there's a real effect, there's a real tangible impact that occurred because of the late appointment of amicus. And then on top of that, there's the lack of closing argument. Can I ask—

about that last lack of closing argument specifically. I've got in mind the Crown's argument in their factum at paragraph 121 where they ask, and I think it's a fair question, because it is troubling that what you raise is troubling about the closing. The Crown asked that had the amicus provided a closing on appeal the appellant given the appellant's predisposition to the amicus and the role of lawyers generally in this would have likely alleged that the lawyer went too far. So the Crown asks us anyway, and so I'm interested in what you say, says the argument would have been that a lawyer who did not represent him, the appellant, had the lawyer suggested that the jury convict of second degree murder rather than consider identity and acquit the appellant as the appellant wanted. This would have created the appearance of unfairness by undermining his position. What do you say, what was the amicus to do here in your view so that it would have been a fair?

Right. So a couple of things and this goes back to Justice Rose's point about the essential elements of the offences. Certainly the amicus can't, you know, he didn't have the ability of a theory of the defence here. But he certainly could identify and did identify that there was an issue to be raised between first degree murder and second degree murder particularly as it related to Ms. Tran. Because of the way he saw his role and because of the trial judge's perception of the role, that wasn't done. And so again, I think that the, I'm not sure if I'm answering your question, Justice Kasker, but.

It's, yes, you are. The Crown really wants to know, given that the amicus is obliged not to say anything that would undermine the position of the accused, wouldn't presenting second degree as opposed to an identity and acquit argument undermine the position of the accused? Are we in between a rock and a hard place here?

We would say that amicus who is there to assist the court in its deliberations and I'm just going to sort of take a broad view of this for a second because as justice Martin said this was a jury trial. So this wasn't a judge alone trial where we had one person who needed help with deliberations. There was 14 members of the public hearing this trial who required the assistance of amicus and didn't receive it because they didn't hear any closing argument. And the jury was aware that Mr. Kasai was displaying sort of, you know, these weird behavioural antics at the beginning of the trial. One of the jurors asked the trial judge if he had been forensically assessed which gives us some indication that they were wondering then what is being done.

to deal with this issue. So again, it wasn't just for the trial judge, it was for the benefit of the jury that they needed to hear closing arguments so that they could understand the tribal issues on the essential elements of the offences. Of course the trial judge knows. And of course, you know, the jury challenges your time is up.

But there will be a last question by Justice Kirgitsan. Thank you.

sentenced to life in prison with no possibility of parole for 50 years. I'm wondering in light of Bissonnette whether where that stands.

I won't speak for my friend but there will be a sentence appeal as well in relation to this matter. So that's an issue that will be dealt with later on. Thank you.

Mr. Nathanson.

Sorry Chief Justice, it's Anita Sagetti here for the Empowerment Council. I think we all thought I was next.

I'm sorry, you're right. Go ahead, please. My mistake. My mistake.

So good morning Chief Justice, justices. The Empowerment Council represents persons with serious mental health issues and addictions. Members and clients of the EC often find themselves defending criminal charges without the benefit of counsel. When they appear unrepresented, it could be because they refused counsel or because they could not sustain a trusting relationship with a lawyer they did retain. Or for other reasons that include refusal of state funding. This case concerns a person who is one, fit to stand trial, two, does not want a lawyer, three, wants to represent himself, four, is not able to do so effectively, and five, this is apparent to the court. In such rare cases, the EC submits the court may and arguably should appoint a partisan amicus to ensure trial fairness. And importantly, it is in the interest of protecting vulnerable accused who do have serious mental health issues that the court may and arguably should do so. In our submission today, we focus on three reasons trial judges may give for refusing to appoint amicus in such circumstances, which we say do not and should not bar such appointments. We say it is wrong to refuse to appoint a partisan amicus either because one, the individual is not known or proven to have serious mental health issues and is therefore presumed to be faking or purposefully derailing the proceedings, or two, because the accused has been a judged fit to stand trial and is therefore presumed capable to represent himself effectively, or three, because CLA is interpreted as barring partisan amicus appointments in such cases. And here's why. First, most people who are disruptive in a courtroom or don't advance any defense have serious mental health issues. Some may not, but regardless of why they're not participating meaningfully, the result risks an unfair trial. So we say, let's not waste time trying to figure out the reason. The impact of refusing the assistance of amicus will be disproportionate unfairness to vulnerable people regardless. And that is what the EC is most concerned about. In order to protect the trial fairness interests of those who do have serious mental health issues, we say the court should not focus its inquiry on trying to parse apart who really is mentally unwell versus who is purposefully derailing a trial because that inquiry is unlikely to yield definitive or accurate results. If the court refuses the assistance of amicus because the accused's difficult behavior is perceived as feigned, there is a real risk that that approach will catch even if unintended those who are genuinely unwell. Second, capacity to self-represent must not be conflated with the separate issue of fitness distand trial. Just as mental illness is not a proxy for unfitness, fitness is not a proxy for the ability to self-represent. An accused who is fit may still be incapable of competently self-representing due to their mental condition. Fitness requires only a rudimentary understanding of the proceedings and the ability to recount the basic facts relevant to the charges so that council can prepare a defense. A fit accused may choose to represent himself, but self-represented accused should not be deemed to have waived their right to a competent defense by dint of having been found fit. In assessing the accused's capacity to self-represent, the presence of mental health issues is an important factor that must be considered, but it is not determinative. Third, CLA and AG does not prohibit the appointment of a partisan amicus in cases where the accused is fit, has refused counsel, but is manifestly unable to represent themselves. CLA really addressed a particular mischief, the routine practice of appointing de facto defense counsel for those who did not have a lawyer, and perhaps as an end run around refusal of state funding. It did not consider, as Ontario courts now have done in JASR, CML, and Walker, for example, unique circumstances of accused who refuse to advance any defense or are disruptive to the point that the lack of an adversarial context risks compromising trial fairness and an unreliable verdict. The empowerment council says the courts in those cases got it right. Where trial fairness requires the appointment of amicus who can level the playing field by taking a position adverse to the crown where necessary, nothing in CLA prohibits that appointment. And in the EC submission, this approach, one that focuses on society's shared goals of a fair trial and a reliable verdict, not on whether or not the accused is genuinely mentally ill or fit, is the one that ultimately functions to protect accused who do have serious mental health issues.

suggest to us that a devious and manipulative accused should not bear the consequences of their deviousness and manipulation. There is a difference, it seems to me, between someone whose mental condition does not permit them to formulate with clarity an approach to a trial and someone who is simply saying, I'm going to game the system.

Right. So two things on that. First, the point we make is, you know, psychiatry is an inexact science and there is that risk that will catch those who are genuinely mentally unwell when we in error decide that someone is malingering and fainting. But I think the bigger point is there's no such thing as a right to an unfair trial. The accused is not entitled to an unfair trial. So no matter how much an accused signals that their intent on having an unfair trial in which they won't participate or will participate only to disrupt the proceedings, our adversarial justice system cannot oblige the accused by giving them that unfair trial. Thank you very much.

I'm sorry your time is up. Thank you. Thank you so much Now Matthew Nathanson

Thank you Chief Justice. On behalf of CDAS, myself and my colleague advocate for a broad, flexible approach to amicus that includes, in some circumstances, adopting an adversarial role. And that is because for the adversarial system to work, there needs to be real adversaries. And when there isn't effectively a real adversary, amicus can play an important role in balancing out the courtroom. And in support of that position, the first point that I would like to make is that in unduly limiting the scope of amicus, or unduly limiting the scope of amicus, limits its effectiveness in assisting the court in ensuring the trial is unfair. Creating a one-dimensional amicus is not what is needed, a muscular, effective amicus is. And that leads me to a question that Justice DeMalle asked my friend Mr. Song that I would just like to comment on if I may. Justice DeMalle, you used the phrase the purposive approach. And I say respectfully that CDAS absolutely agrees with that, and agrees with your comments, and I would just add that the purposive approach, which of course normally comes up in charter litigation, the purposes that the court ought to have in mind are the purpose of ensuring a fair trial, ensuring a balanced courtroom, and ensuring that a miscarriage of justice does not occur. The second point that CDAS wishes to make is one of context, and the court has already commented on the importance of context. And my submission is that it is important to keep in mind that amicus is only needed effectively when things are going wrong, or where they're just about to go terribly wrong. And that's when there is the greatest danger of an unfair trial. And so that's why trial judges at that point need the broadest possible tools in their toolbox in order to prevent an unfair trial from happening. And so there is some risk that the court has identified in terms of traditional roles occupied by defense counsel, but that risk can be attenuated by the clear terms of the appointment, number one, and number two, that even though there is risk, there is the greatest opportunity for reward in this context. And by reward, I mean effectiveness in preventing an unfair trial. And that leads me to a question that Justice Kaseer, you asked my friend Mr. Song about, and I'm paraphrasing, that while the court may recognize the need for flexibility, doesn't flexibility at some point, I think you said fall off the rails, doesn't it effectively become a bright line rule at some tipping point? And I would respectfully say no. The flexibility has to be inherent in the appointment and the role given to amicus, which of course can be revisited throughout the course of the trial. But it only falls away based on a set of facts where the circumstances of the case have reached such a tipping point that a certain course of action is required. So in terms of looking at this analytically, in my respectful submission, there is flexibility throughout the process. It never gives way to a bright line rule, but the application of that flexibility to a unique set of exceptional circumstances may require exceptional action on the part of the trial judge. The last point that I would like to make is in terms of the balancing out of the courtroom. I would respectfully bring to the court's attention the Walker decision from the Ontario Court of Appeal. And in my submission, Walker paragraphs 60 to 73, and in particular paragraph 72, provide the most helpful analysis in this area. And in fact, Walker is in my friend Mr. Song's condensed book. And so the tension that the court alluded to analytically in my respectful submission, the tension analytically isn't there because amicus is always acting for the court. And it is only incidentally that amicus is assisting the accused. And so there is some overlap, but that overlap does not necessarily involve tension. That overlap can be helpful in providing assistance to the accused, but also fundamentally providing assistance to the court. So subject to any questions, those are my submissions.

The CTLA's submissions focus on the practical realities faced by criminal lawyers serving as amicus counsel, and why procedural guidelines can ensure compliance with counsel's ethical duties, which is directly tied to the public confidence rationale that Justice Jamal highlighted early on, mentioned also that these orders are discretionary. At the same time, this court has frequently provided guidance for the exercise of discretion, and our suggestion is that will be of assistance to counsel and courts in this context. So we're not asking for a priori rules around amicus' role, but rather some procedural guidance to ensure confidence in the process and the outcome, because it's here in our submission that the appointment of amicus can fall off the rails, Justice Casir. We've summarized our suggestions for concrete guidance at paragraph 11 of our factum, one, by requiring an amicus appointment hearing, two, by requiring that any subsequent order be reduced to writing, three, by mandating that communications between amicus and the accused be insulated by privilege, four, by requiring that any changes to the amicus order be the subject of submissions and a written variation, and five, by explicitly providing that the order allow amicus to apply for removal for ethical reasons. So first, requiring an amicus appointment hearing and a written order, which is detailed in our submissions at paragraphs 15 to 19. This process ensures public confidence because the process is open to observation, and the act of receiving submissions, crafting an order, will focus both counsel and the court on how amicus can practically serve as a friend. This is the contextual approach mentioned by Justice Rowe. It allows for identification of the key issues and how counsel will serve the court in respect of those issues. So just as this court recognized in Vavilov that reasons focus the mind of the decision maker and provide responsiveness to the actual matter, so too here. At present, amicus orders sometimes arise spontaneously, as in this case, and things often have to happen quickly, as Justice Martin pointed out, but that shouldn't come at the expense of some consideration because complete spontaneity creates problems of its own. What we see is that courts struggle with how to frame amicus' role subsequently beyond a generally accepted friend of the court, and that leads to appeals. Moreover, in trial, counsel then struggle with knowing how to assist the court and competently fulfill their duties. So without submissions and a written order, there can remain nebulousness and fluidity throughout the proceedings, and it's unclear to everyone whether certain functions are or are not required, whether amicus should question witnesses, whether amicus should make closing submissions. By apprising counsel of the nature of the case in advance through disclosure and allowing for submissions, this ambiguity and the potential for ethical quandary is limited. And for the same reason, if the need arises to consider new functions or revisit old ones, there should be a pause in the proceedings to receive submissions, and the order should be varied in writing. A further benefit of this process is it ensures an easily accessible record for review, but more importantly, it means that the system functions as it should and precludes the need for further appeals, hopefully, because trial judges don't appoint amicus because they want appeals. They want to resolve the case, as was pointed out, in a way that ensures public confidence. That's what this process will assist with. With respect to stipulating privilege, which we discuss at paragraphs 20 to 25, to be clear, this isn't to establish a solicitor-client relationship, it's solely to ensure open and frank communications. Privilege is a legal protection for that purpose. It doesn't ensure full partisanship or any type of partisanship in our submission. Finally, withdrawal from services, which is at paragraphs 26 to 31 of our factum. Very simply, counsel need some legal protections to ensure that they can uphold their public mandate. If there are legitimate questions and they can demonstrate to the court that that cannot happen, the amicus order should not become an ethical noose around counsel's neck. And we've provided some real-world scenarios at paragraph 31 where withdrawal might be appropriate.

Can I ask about the privilege that you mentioned? It seems to me we're calling it solicitor-client privilege, but it isn't really solicitor-client privilege arising at common law. It's really a protection that the court is providing akin to solicitor-client privilege under the terms of its order in order to ensure, again, the integrity of its process. So it's the zone of confidentiality that's provided, but it isn't really solicitor-client privilege at common law. Is that fair?

I fully agree, Justice Jamal. That's why I mentioned in my oral submissions privilege, I recognize my written submissions did mention solicitor client, but I tailored that slightly in my oral submissions. I fully agree with your analysis. And I'm cognizant of the time, so I'll cede the floor to my friend, just to note that what we're suggesting is no different than what this court has done in other areas of its recent jurisprudence, such as Babylon, and we'll provide consistency and stability throughout the country. Thank you.

Chief Justice, Justices, I'm here today on behalf of the Canadian Civil Liberties Association along with Heather Ferg. And the core of our submission is that this is a complex and fact-specific area of the law, but the issues get clearer if some of the principles that have been latent in the law are made more explicit. There is, I think it's fair to say, a fair amount of agreement between the intervenors in this case. And our objective in the fact, and my objective this morning, is to put some specificity on how trial judges should apply principles that seem uncontroversial, at least between the intervenors today, including that amicus may be necessary, that amicus may need to be adversarial to be of use to the court, and that amicus appointments do carry risks. So I'll make two points this morning. The first is the potential for conflict between autonomy and robust amicus appointments should not be exaggerated. And the second is that an adversarial litigant is a friend to the court. On the first point, I would urge the court to be a bit skeptical of an approach that purports to champion a defendant's autonomy, where safeguards for that defendant's liberty are absent from the trial process. Our factum outlines the myriad ways a defendant's rights and interests are at stake in a criminal trial. Where the defendant is self-represented, this may be in the mix of considerations relevant to the defendant's dignity and autonomy. But we would urge this court to ensure that decisions on amicus appointments do not reduce the concerns for a defendant solely to self-representation. I would urge the court to take up the analysis of Justice Cullar found in paragraphs 175 and 176 of her concurring judgment. In those portions, she considers whether a bright line around defense-type amicus appointments is necessary to protect the defendant's right to conduct their defense as they see fit. And the approach she takes to that question echoes the analysis from Swain, which is outlined in our factum, that the inquiry should be into whether there is a conflict between the way the defendant wants to conduct his defense and the contemplated role of the amicus and the responsibilities that may be given to them. These cases rarely present as stark a set of facts as stated in the question earlier from Justice Rowe, where the defendant is clear and precise about the scope of their decision to self-represent and the way that participation in the trial by any advocate voicing a defense position would interfere with that choice. We say the law would benefit from guidance to trial judges to consider the question of how a defendant's autonomy is engaged and at risk in the trial and how it may be engaged and at risk in the appointment of amicus.

I mean there's a lot of dancing around here. What you're saying is some people need to have defense counsel appointed for them otherwise they can't get a fair trial. I mean that's what it all boils down to.

I don't know that I disagree with that, but I also think the main emphasis of our submissions is that that decision gets clearer if what's at stake is made more specific. So what is an unfair trial in any particular case is going to come down to the issues in the case and the circumstances and how that impairs or doesn't impair what the defendant intends to do or is doing is also going to be extremely dependent on the factual scenario. And so getting deliberate and specific about those issues is going to assist trial judges in this analysis and in balancing all of the complex issues in a more fulsome way. And I see my time.

Thank you. Can I, Chief Justice, could I just have a very small question, Ms. Rankin, your fine factum which I enjoyed reading. I wondered, you advanced the, it's a very small point, you advanced the term quasi-defense amicus. I'm wondering if that's a helpful turn of phrase to capture the full nuance of your position.

Yes, so certainly we're not advocating for different categories of amicus. In fact, the position is that amicus should be responsive to the situation and that the full range of the appointment is going to be dependent on the circumstances. That term in the factum is used, I think, similarly to what the DPP says, which is we are speaking in this case solely about amicus appointments within criminal trials and where those appointments are not potentially adversarial, where we're not talking about moving into the realm of some of those responsibilities. That's also not a live issue as I see it in the case. We're really in that. It's a shorthand for the subset of appointments and functions that pose the issues that bring us to court today.

Thank you. The court will take its morning break. Fifteen minutes. Court, let go. Thank you. Please be seated.

made a choice and used his voice loudly and clearly. He chose to represent himself. That was his right. Even if it was an unwise decision in hindsight. The trial judge heard him very clearly and repeatedly I want to represent myself. I do not want amicus asking questions. I do not want 486 council asking questions. I do not want anybody helping me. I want to do this myself. I emphasize that as part of the context the court needs to consider when you're looking at whether this appeared unfair. So the court will recall that the appellant had council had preliminary hearing. So it's not that he was unfamiliar with council or didn't know how to get one. 486 council which the appellant omitted this morning is part of the circumstances. As 486 council the lawyer went and met with Mr. Kasai repeatedly before trial. You should get a lawyer. You should get a lawyer. You don't want a lawyer. You should get a lawyer. He didn't. 486 council tried to talk to Mr. Kasai. What's your defense strategy? How would you like me to cross these witnesses I'm dealing with? Mr. Kasai sometimes gave questions, gave instructions, do not say Mr. Beaumont did it and then was generally rude and would turn his back on council and deny, refuse any assistance at all. There's no complaint that section 486 council was ineffective. There's no complaint that 486 council resulted in an appearance of unfairness when the role when you look at it at the end of the day is the same as what amicus ended up doing. Mr. Kasai was entitled to set his overall defense strategy. He made the tactical decision to be obstructive. He was not an accused acting in good faith who got in over his head. As outlined in the materials the trial judge found he was putting on an act. He understood the process but was deliberately ignoring the court rules. So it's not that he was unable to do this. He was unwilling to do this and you can't force him into it.

But Miss Morgan, it is not your position that a trial is necessarily fair as long as the the accused rights of self-representation is respected.

With respect to whether a trial is fair, the Crown's materials, paragraph 86 of our factum, there was sort of a mischaracterization of it this morning. A trial judge has an obligation to ensure the trial is fair and that there's no miscarriage of justice regardless of whether the self-representative accused is cooperative, misguided or intentionally disruptive. He's still entitled to a fair trial. The context of it helps this court do the contextual analysis. When you're saying amicus didn't do a good enough job, you have to remember he had nothing to work with. When amicus was appointed, I'll just jump to the timing of it. It was after the trial judge had tried different methods to get Mr. Kisai to cooperate. They tried, how about you write out the questions? How about you tell me the questions in advance? Maybe tell 486 council the questions. Mr. Kisai did that for a couple of witnesses. He told the judge I want to ask about the shoes. I want to ask about who was in my mother's house. The judge, then they proceeded in front of the jury. I submit that when Mr. Kisai saw what happened, oh, I can't put on my act anymore, then he decided I'm not going to cooperate anymore. I want to ask my questions. I want to do this. So then the next couple of witnesses, same thing. They adjourned. There's an example in the condensed book for Mr. Kisai to provide his questions. When they came back, Mr. Kisai refused to provide any questions. Again, that was his right. But does that make it unfair now that the trial judge is doing everything they can to give him a fair trial, trying all these different procedures? So then trial judge says, well, 486 council, I'm going to appoint you as amicus.

When you say in your factum that the court, paragraph 132, the court cannot force counsel upon an unwilling accused, and that's a pretty categorical statement. Yes. And it seems to me that it doesn't engage in the kind of balancing of rights and.

constitutional rights that the court normally calls for. Surely there may well be circumstances where even though the accused says, I don't want counsel, that the court could appoint an amicus in order to ensure a fair trial in the integrity of its process. It's really the starkness of that statement that struck me and I wonder whether you stand by that assertion.

I do and perhaps I'll provide additional context to what was meant by that. Part of it I think comes down to litigation strategy. So when an accused says I want to say I didn't do it, I want to try to derail the trial with my tactics here, can an amicus then come in and say well I want to say second degree is stronger than first. So can you impose that on an accused who is unwilling to do that? And I submit that you can't. The amicus cannot come in and change the litigation strategy.

No, here, Mr. Kasai didn't say this, but what happens if he says, my litigation strategy is to be as disruptive as possible and to derail the proceedings so that I have a right of appeal thereafter. So I wonder whether the right to represent yourself really is absolute, because it strikes me that there might well be circumstances where the court needs to appoint an amicus to ensure the integrity of the proceedings and to ensure a fair trial.

And that's what the trial judge did in this case.

Well, that's separate from the categorical statement in paragraph 132. That's really my question.

So perhaps it does come down to a contextual analysis, but the intention was you can't force an accused to go to legal aid. You can't force him to retain counsel. You can't enforce a relationship between an accused and a lawyer. In this trial, I think everyone involved would have been thrilled if Mr. Kasai showed a little inclination toward wanting assistance.

Sorry. Can I bring you back to the example you gave us? You said, well, if a defendant says I wasn't there, I didn't do it, then amicus can't come in and promote a second degree as opposed to first degree. That's the example you gave us. But that does not speak to whether amicus can take an adversarial role in testing the crown's evidence or whether there's a case beyond a reasonable doubt. I don't think that anybody is suggesting that amicus can overrule a specific strategy of a defendant. But is there a problem? But I think you may be going beyond that and saying that where there's a risk of that, then amicus can't do anything.

I think my concern was that there was a risk of that in this case. So the absence of a closing did not render the trial unfair in this case. All right.

No. Just as she then was, Justice Kular's guidance does say as you get closer and closer to what a defence council should do, the trial judge should think about what's happening and carefully articulate how to ensure that you're balancing the rights. So not an absolute rule. The only thing that appears sort of a bright line is the comments in the case law that an amicus cannot do litigation strategy, cannot create litigation strategy. In our materials we stated that's a pretty broad term. So I think in the case as the cases are going before the court, the trial judges need to sort of dance around what that might mean. In this case, Mr. Kasai was pretty clear about what he wanted to do. The amicus, the amicus.

Frank, and was suggesting that it's not a question of creating defence strategy, it's a question of being careful that you're not conflicting with the actual defence strategy being proposed by the defendant.

Right, and that might come down to linguistics. I think in any case, the trial judges and counsel involved are really clever. We can sort out how to term it so it doesn't reach the right to self-represent or autonomy, as well as not undermine any accused right to self-represent and their strategy. Binanceppe, thank you so much for that

Ms. Morgan, does the trial judge, should they be giving direction, precise direction as to how the amicus should proceed? I have in my mind the comments that your friends make at paragraphs 117 and 118 in respect of the cross-examination and the trial judge's instruction to amicus that he was not to advocate on Mr. Kasai's behalf but that he could cross-examine as he sees fit. Is that precise enough for an amicus to strike this delicate balance that we're talking about? I mean, does the trial judge have a duty to direct traffic in a more precise way?

more clear language is always better. But in this case, the trial judge was left with an accused who he didn't he asked early on, is there anything you want me to know about your defense? You don't have to tell me anything. So he doesn't know what Mr. Kasai's defense was other than the tactics that were being displayed. So he provided the amicus with the flexibility who was also 486 council to cross examine and bring out relevant evidence. He was also clear that he did not want amicus adducing evidence that was prejudicial to the accused. And the amicus understood that as well. So can the language be better? Yes. Should the language be better going forward? Absolutely. Was it a miscarriage in this case? Okay. No.

But I mean, I think what is happening, and I come back to it that we're just dancing around the fact that as soon as you put counsel into the mix, to some extent you're interfering with the accused conducting their own defense. To me, it's as plain as day. People just deny it. And what happens is that the trial judge says, well, I'm not gonna interfere with your ability to conduct your own defense, and therefore gives this amorphous, ill-defined mandate to amicus as opposed to saying clearly to amicus, you know, you're here to test the truth and the veracity and the reliability of the evidence put forward by the Crown on these matters. I mean, the reason judges are mealy-mouthed is because they're pretending that they're not doing something which in fact they are doing, which is saying you're gonna get a lawyer whether you like it or not.

And there may have been some of that in this case as the amicus was told not to do evidence prejudicial to the accused. So if you're in a strictly neutral role, you're reducing relevant evidence, whether whoever it's for or not. But that was to the benefit of Mr. Kasai in this case.

Ms. Morgan, can I change sort of tax here just a little bit? We of course are interested in the overall trial fairness rights of selfrepresented people. And most of the attention in this case has been placed on the trial judge's obligation to ensure a fair trial and the role of amicus. I have a bit of a different question for you. And that is what is the role of the crown in a selfrepresented situation where in preparation, pretrial and that, what do you think are the limits of the crown's responsibilities as quasi judicial officers in those instances? We know what the trial judge is supposed to do.

I'm not sure that there are limits. I think the Crown prosecutors in this case they provided material to the accused. He threw it on the floor. They ensured he had copies of everything and took other steps. Other cases, the Ontario cases, I think the Crown even went so far as to agree to having an amicus and the amicus could go and ask questions and like Crown Council have an obligation to the court and the public and the selfrepresented accused. I know I'm not really answering your question but I can't really specify that there's like I can't articulate a list of what the Crown should and should not do.

Just to follow up on justice Martin's question, in walker, a case that you cite, paragraph 72, the amicus role is described as not to help the court at large, the court did not need help at large, nor was it to assist in advancing submissions already before the court through the capable assistance of experienced Crown Council. So that's not the role, but I guess it's on the boucher against the Queen idea that requires the Crown to step up in circumstances where the Crown knows, even if it's perhaps to the advantage of their end game, that a fair trial is potentially compromised by them not stepping up in a circumstance where a self rep is not doing themselves service.

There is certainly a role for the crown. I did forget 46 council was an application I believe by the crown in this case to help assist the court and the truth, find the truth, seek the truth out. In walker there was submissions by the crown. Walker of course the accused was potentially unfit and wasn't asked if they actually wanted to proceed. So there were a whole bunch of different concerns in walker than there are here. With respect to the timing of amicus in this case the crown submits that given Mr. Kisai's absolute refusal to accept any help, appointing amicus to endure that abuse sooner probably would have been futile. It could not have been clear that the appellant was determined to disrupt the trial no matter what assistance the court offered him. There were some comments about amicus council this morning and I just there was no overt allegation that his conduct was ineffective. In fact the materials actually say that he's not alleging ineffective council but it came out this morning that he is saying ineffective assistance and council was ineffective. I think that's actually unfair. Council was 46 council. He was not plucked out of a hallway. He had some familiarity with the case. He went and saw the appellant before trial. He saw the appellant during the trial. He had the appellant engaging at some points and then the appellant would turn his back on him. He noted for the court that the lack of cooperation did not make things easy but he was prepared to take on the expanded role as he was doing his duty to the public to assist with having a fair trial. He did his best to familiarize himself with the evidence and cross examine the best he could. He tried to draw out questions, one of the questions I think council was alluding to this morning was officer's notes had reference to the victim walking her dog at a certain time. So he was able to explore that. There was a bloody shirt in a room found in the basement that was unrelated but he explored that. This is all trying to help Mr. Kasai. So it's not unfair to him. He considered asking for an adjournment but things were going slow enough and you can see in the record he was prepping at night. He's doing the jury instructions, sending emails at 930 in the evening. There's no deficiencies in the cross examination that was before you. He didn't fail to bring out something that should have been brought out and he didn't bring out something that should not have been before the court. In his opinion, better, longer, more focused cross examination would not have helped in the absence of knowledge of a viable defense due to the appellant's uncooperativeness. So this is not about ineffective council. It's not about the court failing to provide assistance. It's about the appellant being unwilling to listen. He quite literally closed his ears and his eyes to the system and is now complaining that we didn't help him enough.

Can we go back to Justice Martin's question? Because I think it's actually important. If you accept the premise, just assume Mr. Song is right for now, that it was obvious to everybody that this trial was going to go off the rails and the accused was going to continue to be disruptive. I think what I took from Justice Martin's question is that there's perhaps not only an obligation in that instance or consideration for the court to appoint amicus, but also for the Crown perhaps to propose it. Do you accept that if you accept Mr. Song's premise that there could be an obligation of the Crown to propose something along those lines to ensure a fair trial and recognizing the accused wanted to represent himself, that given the Crown's duty not to win, but to do justice and ensure a fair trial, that could be something that the Crown would have an obligation to do.

I think it is certainly open for the Crown to bring that but I don't I wouldn't say it was an obligation Going forward of course, we will have the guidance from the court in this case that will assist and say Am I am a Chi? Amicus can assist in many different ways.

obvious that to the Crown, I mean I said the premise is that it's Mr. Song's premise that it was obvious to everybody the Crown doesn't have to to do anything is that is that your position?

The Crown didn't do anything. The Crown brought the 486 application. The Crown in this case opposed amicus because they were concerned the cross examination was going too far. So that was a position the Crown took which if that's the Crown's position then we can't also say they're obligated to have amicus if the Crown doesn't think it's suitable. So that's the tension I'm having with your question. There was a different case in Edmonton. It wasn't ‑‑ I had to put a newspaper article in before you but it was an accused who did nothing, remained mute and an amicus was appointed in that case to assist the court and I believe they did closing and they did cross and that kind of thing. So this is not necessarily how everything always works but it was case specific and in this case the Crown took a position that was opposed to having an amicus with the scope.

I think one of the problems is it comes up in respect of the duty upon the crown and I guess you shy away from obligation. I'm not sure that that's the right thing to do but to get back to the amicus, is it perhaps I'm thinking of justice fish's descent in criminal lawyers association. He wasn't dissenting I don't think on this point when he described a kind of a divided loyalty for an amicus. The amicus has of course a principle loyalty to the court as a friend of the court. At paragraph 119 he says that by adopting that role an amicus may be called upon to, he puts the word act in quotes for the accused, while leaving

their role, their fundamentally distinct role intact. And he closes by saying, furthering the best interests of the accused may be an incidental result, but not the purpose of an amicus appointment. Do you find that a helpful description of how an amicus can sort of hold two roles in their minds at once, principal role to the court, but incidental role to the accused? Is that a helpful way for us to think about the role of the an amicus?

Yes, I do think that is helpful. Cross examining to test the evidence. The purpose is to get the truth out and assist the court in getting the truth out. It can also assist the accused.

wouldn't object to the court endorsing that view.

With respect to the closing submission, the trial proceeded in the usual way and the appellant wants to add an irregularity by having a second closing that is more effective than the one that he gave. As we submitted in our materials, that could create tension with what the accused wanted to say. There's a case from Ontario Court of Appeal where counsel did not argue first versus second as they took the position that the accused didn't do it. So it could have undermined the position in front of the jury to have the judge's lawyer or the lawyer assisting the court after Mr. Kisai says I didn't hurt my mom, then have a lawyer come in acting to assist the jury and assist the court to say, yeah, he did it, but it's really second, not first. And when you look at the jury charge in this case, the jury was...

done could it that have been done in the alternative could amicus have stood up in a closing argument and said I recognize that the accused has said that he didn't hurt his mother and it wasn't him who did it but in the event that you choose not to follow that be mindful of the distinction between first and second-degree murder was that was that impossible

Not impossible and Justice Kular and her just Chief Justice Kular and her decision says and it wasn't an unfairness in this case but going forward and I think that would probably involve the discussion with the trial judge and the amicus and Whether or not the accused is assisting or not to sort of frame how exactly you can do that the jury instructions in this case, for example, the The amicus could have repeated there's no direct evidence of planning and deliberation There's no motive in relation to miss Tran to get to planned and deliberate the jury first had to be satisfied the appellant killed both caused the death of both victims and That he had the requisite intent for murder This is a circumstantial case with the requisite jury instruction and his denial was before the court The jury instruction also explained that he had the right to silence in there They were told to disregard police theories. They could not draw an average inference from non-answers or from the fact that he did not testify so in the Circumstances the jury was equipped with the tools that they needed to decide the case And there was no unfairness in fact or in appearance You

Can I ask you this question? There's no complaint about the legal propositions in the jury charger or those sorts of things. When the jury is sitting and turning their minds they decide the facts. And isn't the problem in a situation like this that they are determining the facts without effective cross examination that is a cornerstone of a fair trial and so the facts themselves are seen in a light that they weren't, you know, it wasn't tested about what happened at the scene and those sorts of things that one would normally expect to have occurred in a murder trial.

There's no allegation here that the cross-examination was deficient, and there is no suggestion that any evidence wasn't missed. The amicus cross-examined the DNA expert about the blood on the shoes, and that you don't know when it got there, and you don't know how it got there, right? Right? Amicus cross-examined the aunt about how she got the shoes. They cross-examined the police about you didn't know where the accused was this weekend. There's no evidence about where he was this weekend. So it's not that, I mean, every trial, we're going to have the benefit of hindsight and saying things could have been different better, but that doesn't mean that this trial was unfair. When you look at the circumstances of this case and the effort the trial court put in and the amicus to put in to give Mr. Kisai every tool that he needed, every opportunity he needed to present full answer and defense, the Crown's position is that there's no defect that is so serious that it shakes public confidence in the administration of justice. Going forward, things could be better. Things could be different. Other cases have shown how everyone is responsible in ensuring that the trials are fair. And going forward, hopefully we can learn from this experience and deal with amici perhaps getting it sooner, bringing it up at pre-trial conferences, that kind of thing. But hindsight is 20-20. And subject to any further questions, the Crown submits that the appeal should be dismissed.

Thank you very much.

The Director of Public Prosecutions invites this court to consider two submissions. First, the impartial amicus approach is a useful analytical tool. Second, when setting the terms of an amicus mandate, trial judges should use concise language that directs amicus to stay within the parameters of the impartial amicus model. Now, who is impartial amicus? Impartial amicus owes a duty to the court, not the accused. Their goal is to assist the court in acquiring a comprehensive portrait of the facts and in identifying the legal framework that the court needs to adjudicate fairly and arrive at a just determination. They may perform a wide range of functions, but they do so impartially for the benefit of the court and only the court. Importantly, they do not take instructions from the accused and they do not formulate or control litigation strategies. The parties, the trial judge and the jury understand that amicus is approaching their role in an impartial way. Figuratively, amicus sits at a table in the courtroom between the self-represented accused and the crown. They do not sit at a table with the self-represented accused in an effort to balance the courtroom. Impartial amicus stands in contrast to partisan amicus. Partisan amicus operates in an ambiguous zone, somewhere between a full-fledged defense counsel and impartial amicus. They may be called upon to advance an adversarial perspective. They may be called upon in certain circumstances to take control of the accused litigation strategy if the accused is doing a poor job or the accused is not sufficiently participating in the trial. Figuratively, partisan amicus sits at the self-represented accused table in the courtroom. They look and they act like a defense counsel. This court in CLA warned about the dangers of amicus assuming a defense counsel-like role. These dangers apply with equal force to partisan amicus. Most importantly, there is a danger that partisan amicus will violate the self-represented accused unfettered right to run their defense as they see fit. At this hearing, some have argued that what is needed is a flexible approach, that the trial judge should have a wide discretion to deal with the exigencies of a given case. These submissions have merit in a general sense, but they fall off the rails, to use the expression of Justice Acasir at a certain point. They fall off the rails because they do not delineate the boundary between permissible and impermissible performance obligations. The impartial amicus approach does. Justice Rose says that in a certain way we're dancing around this issue. We suggest that the impartial amicus approach does not. It defines where there needs to be a definition and it draws a bright line. Our second submission is that the trial judges should clearly define amicus mandates in light of the impartial amicus approach. Amici need specific instructions. They need to be told that they are not defense counsel. They need to be told that they are not to take instructions from the self-represented accused and that they cannot control the litigation strategy. But beyond this and with trial fairness in mind, the terms of the mandate should be responsive to the needs of the trial. And in certain circumstances, impartial amicus can take on an active role. And this can mean that they may be called upon to test the Crown's evidence through cross-examination and to make submissions both legal and factual in nature. But admittedly, the devil is in the detail. Trial judges should avoid ambiguous language and they should avoid language that suggests amici should take on a partisan or adversarial role. This just makes things...

Mr. McPherson, you in your factum, you object to this language that you describe as vague. One of the terms, I'm at paragraph 29 of your factum, that you object to is this idea of a balancing role for the amicus. And you point us to a paragraph in Walker, Justice Fairburn's judgment in Walker, which I found helpful, but I'd like you to tell me what you think is wrong with it. She wrote, undoubtedly amicus misunderstood her role. She'd been appointed to assist the hearing judge in protecting the fairness of what was a complex and challenging proceeding. Amicus was appointed because of the clear need to protect Ms. Walker's interest and to balance out, there's the word, balance out a highly skewed adversarial process. What's your objection to that idea of a balancing role that is consonant with this notion of impartiality or overarching idea of a friend to the court?

I think I maybe over time Chief Justice, if I may just have a moment. You are, but you can answer the question please. Thank you. Yes. To the extent that it is consonant with the idea of an impartial amicus, there is no problem with that Justice Kassir. And to return to the statement of Justice Fish that to the extent that it's incidental, then there's nothing wrong with it when we're talking about the benefits to the accused. But we would say that it is a bit, it's ambiguous to simply say that the role is to balance out the courtroom. It really doesn't provide clear marching orders for the amicus. Thank you very much.

Good morning, Chief Justice, Justices. Ontario will be making submissions on the scope of the amicus role. In almost every case involving a self-represented accused, including serious and complex cases, the trial judge will not need to resort to amicus. The trial judge will be able to discharge their judicial functions and ensure the trial is fair and progresses in an orderly way. However, in those rare and exceptional cases where a trial judge determines that the assistance of amicus is required, it is Ontario's position that they should have flexibility to tailor the appointment to the exigencies of the case. The trial judge is in the best position to determine what is required to ensure trial fairness and trial progress. For this reason, there should not be bright line rules about what functions amicus can or cannot perform to assist in the fair disposition of a case. Trial judges should have the discretion to appoint amicus to perform specific advocacy or other adversarial functions in a criminal trial in exceptional cases, bearing in mind the important concerns this court articulated in the criminal lawyer's decision. An amicus appointment with an adversarial component should only be ordered where the trial judge determines it is necessary to ensure trial fairness and prevent a miscarriage of justice. In exceptional cases, amicus could be appointed to perform some of the following functions, making submissions adversarial to the Crown on complex legal issues, cross-examining witnesses, participating in making submissions at pretrial motions, explaining the right to call defense evidence to an accused person and assisting them with the presentation of that evidence, participating in the pre-charge conference discussions, and making closing submissions. The fact that trial judges should have the discretion to appoint amicus to perform these functions does not mean that they should exercise that discretion in every challenging case involving a self-represented accused.

Mr. Dewa, would you agree then, and I value that list of functions that an amicus can perform, that really then what differentiates the amicus is not what they do, but how they do it. Because that seems to me to be what differentiates in some instances an amicus and, you know, so I don't find the label helpful myself, but a partisan defense counsel. It's how they do it, how they go about it, and the manner and the tone in which they present the discharge of that particular function. Is that a useful sort of way of looking at it?

Certainly, I would agree with that, Justice Jamal. But certainly in certain cases, amicus should be appointed to test the Crown's case and test the limits of the Crown's case with these specific functions in mind. Now, in most cases, you won't need to have amicus perform these functions, but it's really only where an accused cannot or will not meaningfully participate in the proceedings that an amicus with an sort of active adversarial role should be contemplated.

I very much doubt whether this is as rare as you say. I mean how many trials have wired ears on the missibility of evidence and even a well-meaning accused is likely to be completely baffled by the procedure.

Well, a trial judge has an obligation to assist. And in Ontario submission, in most cases, a trial judge will be able to provide an accused with the requisite guidance to participate meaningfully in their trial. But it is in these very complex and serious cases generally where an accused has particular cognitive issues or refuses to participate, that really we would be looking at appointing an amicus with an active adversarial role. Now, where this is being contemplated, judges should always be guided by what assistance the court actually needs to ensure the fairness of proceedings and to prevent a miscarriage of justice. And the trial judge should only include as many adversarial functions as is necessary in the terms of appointment. And in my submission, this will mean that closing submissions to a jury, for example, will almost never be part of amicus role. The trial judge should be in a position with the active involvement of amicus at the pre-charge conference to ensure that the charge is fair and balanced and highlights the evidence and gaps in the evidence that favor the accused. Only if there is something that cannot be accomplished through the trial judge's instructions and there is a real risk of a miscarriage of justice, should amicus be asked to make closing submissions to a jury. Thank you. I see I'm out of time.

Time is up, yes, thank you very much. Any reply Mr. Son?

Justices, Chief Justice, I'll be referring to my condensed book at tab 4c in the course of my reply. But I want to first address the questions posed to my friend about the absolute nature of the right to self-represent. And I would ask the court to reject the precept that one might be permitted to be the author of one's misfortune. It's a submission that's alluded to in my friend's materials. Because then there would be no purpose to appoint amicus. At least not in this case. If that were the case then Mr. Kasai should have been allowed to commit litigation suicide and proceed to sentencing. But that's not what the trial judge felt and the trial judge was of the view that amicus was required to ensure a fair trial. Justice roe has asked some questions and commented about the parties dancing around the reality that amicus would perform roles similar to defence counsel. I accept that in some circumstances like this case that amicus would perform many of the roles that defence counsel would be expected to perform. But we have to remember that there's a very important distinction between defence counsel and amicus which is that solicitor client relationship. That relationship is allowed to exist in law to enable an accused person to potentially maximize their defence through counsel. Through privileged communications, allowing counsel to investigate defences, retain experts, prepare witnesses for trial and certainly defence counsel providing strategic advice. Those are things that amicus would not do and would not be permitted to perform.

What do you say about the suggestion that the order should grant confidentiality to

Yes, and in appropriate cases that could very well be part of the order. I would ask the court to consider indicating that trial judges should be permitted to make that type of order. It would be consistent with the immigration and refugee protection act with respect to special advocates. It would ensure that the communications could be deemed to be privileged but disclosed if there were a proper application. My friend says that it's unfair to impugn amicus' performance in this case. Certainly we do not allege ineffective assistance of council as it's set out in the cases with the two stage process measuring the performance and the prejudice. But in assessing whether the trial was unfair, court certainly needs to look at the role amicus played and what amicus had done in the case. If we go to tab 4c of the condensed book, our condensed book, and ask the court to turn to page 972, just by background this is when the crown objected to some of the amicus' questions and said that he was getting into some dangerous waters and go to line 30, amicus says, well, I guess the problem is I was appointed late in the case and I'm not thoroughly familiar with the case. And I have no idea what the investigation into key's texts were and how they relate to the case because I have a summary of Kavila's actions. I don't even know who key is actually. I believe it's a male going down to 38. So it may be that it leads nowhere at all. I don't know. But some of the things in my respectful submission do warrant either further investigation or some sort of explanation in my respectful commission. And again, with respect to Mr. Key's text, maybe there's nothing at all. I don't know. I have to agree it is speculative. This in my submission is an example of amicus conducting a cross examination, not being prepared and doing it in a general aimless manner that discloses that there was an appearance of unfairness. And lastly, what I would say is this in respect of justice Jamal's questions about the trial judge being in an unenviable situation, it's not the discretion of the trial judge or the prejudice in respect to the verdict that's at issue here. This court as an appellate court can still look at the trial, the overall trial to determine if it was unfair or appeared to be unfair no matter how it came to be. Those are my submissions. Thank you very much.

Thank you all for your submissions. The court will take the case under advisement. Thank you.