Amicus Appointments for Self-Represented Accused: Defence Counsel Strategy

This article provides a defence-focused analysis of amicus curiae appointments in criminal proceedings, drawing on Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, and R. v. Walker, 2019 ONCA 765.

Facts

Amicus appointments arise where an accused is self-represented and the court requires assistance to ensure trial fairness. Requests may originate from the accused, Crown, proposed counsel, or the court. The prosecutor maintains carriage of the application process.

Issue

When may a court appoint amicus without undermining the adversarial system or the accused’s right to control their defence?

Governing Law

In Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, the Supreme Court held that: (1) amicus cannot assume the role of defence counsel; (2) appointment is only justified where assistance is essential to the judge’s functions; (3) the power must be used sparingly and in exceptional circumstances; and (4) amicus is a friend of the court who does not take instructions from the accused.At para. 48, the Court confirmed the dual requirements of essentiality and exceptionality.

Holding

Courts have a narrow, carefully constrained discretion to appoint amicus to preserve trial fairness, but must avoid distorting the adversarial structure.

Procedure and Practice

The role of amicus must be carefully defined at the time of appointment. Prosecutors are expected to request clear limits. Funding is typically through Legal Aid Ontario, and courts cannot fix rates of compensation.