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Summaries Sunday: Supreme Advocacy

One Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe. It’s a summary of all Appeals, Oral Judgments and Leaves to Appeal granted from July 20 – August 31, 2023 inclusive.

Appeals

Criminal Law: Self-Represented Accused; Role of Amicus
R. v. Kahsai, 2023 SCC 20 (40044)

In exceptional circumstances, the trial judge retains wide discretion to appoint an amicus curiae with adversarial functions that can respond to the needs of a particular case. In tailoring the role for amicus, the judge must respect both the right of the accused to conduct their own defence and the right to a fair trial. These principles of fundamental justice, along with the nature of the role, help define the assistance that amicus can provide. While the role of amicus therefore has limits, the scope is broad enough to assist the judge where necessary to ensure a fair trial. Although the trial judge here seems to have held the view that amicus could not play a more adversarial role, it is not clear that he would have granted a broader mandate in the circumstances, particularly given the accused’s objections to the appointment, and he was under no obligation to do so. Any irregularity does not result in a miscarriage of justice. In sum, the proper scope of the roles for amicus is limited by necessary constraints inherent in the nature of the role: the role of amicus as a friend of the court means that the amicus can never discharge functions that would violate their duty of loyalty to the court or undermine the impartiality of the court, such as by advising on key strategic defence choices; the mandate assigned should respect the key strategic decisions asserted by the accused while also respecting what is required for trial fairness; the appointment cannot be exploited to circumvent the legal aid scheme or judicial decisions to refuse to grant state-funded counsel. While these limits do not preclude an amicus from performing any adversarial functions, they do restrict the kinds of assistance that amicus can provide.

Leaves to Appeal Granted

Transportation Law: Air Regulations; Validity
International Air Transport Association, et al. v. Canadian Transportation Agency, et al., 2022 FCA 211 (40614)

Validity of air regulations re passengers.

Young Persons: Protection
Commission des droits de la personne et des droits de la jeunesse v. Directrice de la protection de la jeunesse du CISSS de la Montérégie-Est, et al., 2022 QCCA 1653 (40602)

There is a publication ban in this case, and a publication ban on the party; certain information is not available to the public, in the context of provincial youth protection.

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