Update to our earlier post below, this one is now done and dusted. We had a great day in Court.

Clockwise from Top Left: Me, Carter Martell, Cassandra DeMelo and Maya Shukairy – our team representing the Empowerment Council, One of Four Interveners Supporting the Appellant Kahsai

Here is the original post about this appeal from yesterday – March 13 2023

Tomorrow at 9:30 Carter Martell, Maya Shukairy, Cassandra DeMelo & I will appear in the Supreme Court of Canada to represent the Empowerment Council in R v. Kahsai.

It’s not often you get to go back to the SCC & revisit an issue you’re passionate about 10 yrs later.

This case is about the role of amicus.

I was also counsel to a different intervener group in 2012 on CLA v. AG, which touched on this issue. I did my level best work on that intervention.

Left it all in that courtroom during those 10 minutes – luxurious time allocation by today’s standards!

If you’re interested in these issues, I commend to you the whole archived webcast of CLA v AG from December 12, 2012 – which has the absolutely best advocacy you’ll ever see for the Respondent CLA by now Justice Andras Schreck.

For my part in it, I closed out the hearing at 3:30-3:41 of the webcast – just before the AGO’s Reply.

You can view the video here:

Our side lost.

So this is a really excellent opportunity to revisit if we must, or otherwise to confirm, that CLA did not intend to bar the appointment of amicus to level the playing field in criminal trials.

This is a really interesting criminal appeal.

Watch live here at 9:30 on Monday March 14, 2023 or the archived webcast also here shortly after that:

Webcast of R. v. Kahsai in the SCC March 14 2023

I’m really looking forward to arguing yet another case in the SCC that will showcase the talents of young counsel, including my good friend, co-author and colleague, Sarah Rankin, who — together with Heather Ferg of McKey Ferg — will represent the CCLA.

It will be a thought-provoking & fun day!

You can read our Factum online here:

All parties’ Facta are located here:

https://www.scc-csc.ca/case-dossier/info/af-ma-eng.aspx?cas=40044

A Summary of the Case is provided by the SCC here:

https://www.scc-csc.ca/case-dossier/info/sum-som-eng.aspx?cas=40044

At trial, the appellant was convicted by a jury of two counts of first degree murder. The appellant had refused to retain counsel subsequent to the preliminary inquiry and was adamant that he wanted to represent himself. Two separate amicus curiae were appointed to assist the court at different times; however, he refused to co-operate with either. The appellant appealed the convictions and alleged that the perceived fairness of the proceedings had been tainted due to the trial judge’s failure to appoint a partisan amicus curiae at an early stage of proceedings, with instructions to take on the key responsibilities of defence counsel. A majority of the Court of Appeal of Alberta found that there was no trial unfairness arising from the role of the amicus curiae in this case, and dismissed the appeal. It held that the appellant made the full answer and defence he wanted to. In dissent, O’Ferrall J.A. found that there was a miscarriage of justice. He would have allowed the appeal and ordered a new trial at which the appellant would be represented by defence counsel or an amicus curiae conferred with sufficient authority to advocate on his behalf, independent of the appellant’s wishes.

On a Personal Note

For me personally, this issue has been a huge part of my career as I have served as amicus in mental disorder matters literally hundreds of times, beginning with being appointed as Amicus Curiae by the Supreme Court on Starson in 2002.

Although my name is not on the Judgment of the ONCA in a case called LePage, it was my case – I had to have someone else attend because I physically couldn’t go to argue it, but it was a little case arising from an ORB hearing that ultimately actually became hugely important as the basis of de facto defence counsel in criminal trials.

A practice ended abruptly by CLA v AG in 2012, which pretty well torpedoed all that and caused the mental disorder appeals amicus curiae program to also implode shortly thereafter.

I have been exercised and deeply troubled by that SCC Judgment in CLA v AG for over 10 years.

So this is an opportunity hopefully to revisit and address the concerns on the ground that have developed as a result.

A rare, golden opportunity to ask our country’s top court to now look at the issue of the role of amicus, that impacts those with serious mental health issues with disproportionate effect, anew, with the last decade’s experience in the fall-out from CLA v AG now known.

Here’s hoping for a good outing in the beautiful Supreme Court of Canada, even virtually for us as interveners, tomorrow!

AND NOW THAT THE HEARING IS OVER, HERE ARE THE DAY’S SOUVENIR PICS!

And where to view the Webcast of the entire proceeding:

Webcast of R. v. Kahsai in the SCC March 14 2023

Sarah Rankin’s excellent submissions for the CCLA are found here 33:53 to 41:39

My submissions for the Empowerment Council run from 33:53 to 41:39.