Why Can’t Amicus Curiae Be Required to Be Objective “Friends of the Court”?

Many Ontarians cannot afford a lawyer. Chief Justice Winkler said that “an expanding group of Ontarians are finding that the system is often too expensive, too complicated and too slow in assisting them with their legal problems.” Chief Justice McLachlin has said the options for “average middle-class Canadians,” ineligible for legal aid, are “grim.”

In response to this, one initiative has involved the appointment of amicus curiae (“friend of the court”) in mental health appeals and family law disputes. In a decision called Bhajan v. Ontario (Children’s Lawyer), the Ontario Court of Appeal recently described the test to intervene as an amicus.

In her reasons, Justice Weiler concluded the appointment of an amicus is “in the discretion of the court,” a discretion that has evolved in over twenty years of jurisprudence to the point where an amicus’s role may be akin “to that of an advocate on behalf of a particular person or point of view in many cases.”

Rule 13.02 of the Rules of Civil Procedure, the applicable Ontario Rule, still says that an amicus must intervene “as a friend of the court.” One can imagine how it is possible for someone to remain a “friend of the court” while engaging in tasks typically thought to be adversarial, like cross-examination. The amicus could challenge assumptions and facts.

But after this has occurred, as difficult as it may be, it should be paramount for an amicus to provide dispassionate, neutral analysis to the court. Contrary to the Bhajan decision, it is difficult to reconcile the words “friend of the court” in Rule 13.02 with a partisan advocate.

Partisan advocates who are likely unable to meet the test for dispassionate assistance to the Court should be required to meet the test for intervention under Rule 13.01 of the Rules of Civil Procedure, a rule that is tailor-made for persons who claim “an interest in the subject matter of the proceeding.”

Amicus curiae can be helpful. But if interest groups are allowed to intervene as “friends of the court” without requiring that some degree of objectivity is brought to their analysis, the traditional amicus curiae role involving a “friend of the court,” making neutral submissions, risks becoming tainted by partisanship.