Thursday, July 31, 2014

Amicus not substitute for defence counsel

R. v. Al-Enzi, 2014 ONCA 569:

[81]       The traditional role of amicus was to assist the court, typically by making submissions on points of law. Only indirectly did the traditional amicus assist a party. The trial judge, however, did not appoint amicus in a traditional role. He appointed Powell in an expanded role more akin to the role of defence counsel. That expanded role fits uncomfortably with the Supreme Court of Canada's recent decision in Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 49-56. However, this trial took place before the Supreme Court's decision, and thus the trial judge did not have the benefit of that decision.

[82]       Even with an expanded mandate, however, amicus was not an adequate substitute for defence counsel. Al-Enzi needed a person fully familiar with his case, a person in whom he had full trust and confidence. The solicitor/client relationship is built on intangible characteristics, not transferable to a person appointed by the court – certainly not a person with whom the client has had no relationship: see R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.); and R. v. Rafferty, 2013 ONCA 741, [2013] O.J. No. 5550. Both the actual fairness and perceived fairness of criminal proceedings against an accused partly depend on this relationship. Courts zealously guard one's right to be represented by a lawyer at a criminal trial. Only in rare cases do courts limit this right. In my view, this was not one of those rare cases.

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