For all its strengths, our adversarial system has its shortcomings. As the parties control the presentation of their case, if a fact or law is not in a party’s interest to bring up, the judge may never hear of it, however relevant it may be.
To overcome this shortcoming, the court can, in exceptional circumstances, summon the assistance of an amicus curiae. The purpose of an amicus curiae, Latin for “friend of the court,” is to inform and advise the judge as to matters of fact or law that might otherwise escape consideration so as to minimize the risk of error in judgment.
The practice of appointing amicus, which has been reported in cases as far back as 1353, has undergone continuous evolution over the years. The Court of Appeal’s decision in MorwaldBenevides v. Benevides, 2017 ONCA 699 marks the latest in the evolution, ushering in two notable changes to amicus appointments.
First, Benevides broke fresh ground in appointing amici to act for each of the parties in a civil proceeding. Set in the context of a complex custody battle, the trial judge appointed an amicus for the mother after she had discharged five lawyers and collapsed in the courtroom on the first day of trial. To avoid a lopsided situation, the judge then called on the father’s lawyer to continue as amicus for him when she sought to withdraw because of unpaid fees.
The appointment of amici to act as counsel for parties jars with the traditional role of the amicus as an independent, non-partisan advisor to the court. The amicus is bound by a duty of loyalty to the court, not to the parties in the dispute. They do not take instructions from any party, and there is no solicitor-client privilege. As with the judge, their only interest lies in ensuring a fair trial and credible justice. To this end, the amicus is obliged to bring all pertinent points of fact or law to the court’s attention, even if they are against a litigant’s interest.
To require an amicus to step into the shoes of an advocate, as the court did in Benevides, imperils their neutrality, rendering them neither effective as an amicus nor as an advocate. The duties of an advocate and those of an amicus inherently conflict. An advocate is committed, in the words of Lord Brougham, “to save [the] client by all means and expedients, and at all hazards and costs to other persons.” By contrast, an amicus serves to protect the court’s honour; they will not urge any particular outcome and need not maintain any client confidences. The duties of amicus and advocate collide when an amicus assigned to function as advocate is aware of facts or legal arguments unfavourable to the party for whom they act. Are they to bring up those facts and arguments or keep silent as they have been instructed by the court to play advocate?
Moreover, such amicus appointments undermine both counsel’s integrity and the court’s impartiality. Where an amicus had initially been counsel for a party, as was the case with the father’s lawyer in Benevides, they would be acting “against” their former client in assisting the court using previously obtained confidential information. Unless the former client consents, the rule of professional conduct prohibiting lawyers from acting against former clients is contravened. When it comes to the court, by assigning an amicus to act for a party, it is doing indirectly what it cannot do as impartial arbiter: provide legal and strategic advice to litigants.
The second change that Benevides spurred is to vest the Crown with greater control over who judges can call upon as amicus to inform and advise them.
In Benevides, the two amici appointed by the trial judge were not prepared to accept legal aid rates. Rather than negotiate remuneration, the attorney general moved to set aside their appointments. Siding with the attorney general, the Court of Appeal remitted the matter back to the judge below to select an amicus from the three candidates proposed by the attorney general.
If there is truth in the maxim “you get what you pay for,” then the judiciary’s ability to appoint qualified counsel as amicus is significantly hamstrung when the attorney general has unilateral control over amicus remuneration, and it can cap it at legal aid rates — or less. Where a judge’s counsel of choice is not willing to work at the legal aid rate or whatever rate is imposed, the judge is left making a Hobson’s choice — either they accept a candidate put forward by the attorney general or forego having the services of an amicus altogether. While it is not the case at present, Benevides leaves the door open for the attorney general to fix the rate of compensation exceedingly low, thereby winnowing the judge’s selection to a few whose quality and/or independence from the Crown is questionable.
Such a result would jeopardize the separation of powers between the executive and judicial branches and mar public confidence in the overall administration of justice. As Justice Fish portended in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, “if the Crown were permitted to determine unilaterally and exclusively how much an amicus is paid, the reasonable person might conclude that the ‘expectation . . . of give and take might lead the amicus to discharge his duties so as to curry favour with the Attorney General.”
With the shifts in the tides that Benevides swept in, the amicus curiae may sooner turn a friend of the Crown.
Anna Wong practises civil litigation with Landy Marr Kats LLP in Toronto. She can be reached at