Law Times

Law Times • November 6, 2017 Page 7 www.lawtimesnews.com Evolving role of amicus curiae BY ANNA WONG F or 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 con- sideration so as to minimize the risk of error in judg- ment. 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 Morwald Benevides v. Benevides, 2017 ONCA 699 marks the latest in the evolution, ushering in two notable chang- es to amicus appointments. First, Benevides broke fresh ground in appointing amici to act for each of the parties in a civil proceed- ing. 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 law yer to continue as amicus for him when she sought to withdraw because of un- paid fees. The appointment of amici to act as counsel for par- ties 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 solic- itor-client privilege. As with the judge, their only interest lies in ensur- ing a fair trial and credible justice. To this end, the am icus 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 am icus nor as an advocate. The duties of an advocate and those of an amicus inherently conf lict. 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 par- ty, as was the case with the father's lawyer in Benevi des, they would be acting "against" their former client in assisting the court using previously obtained confi- dential information. Unless the former client consents, the rule of pro- fessional 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 ad- vice 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 Ap- peal remitted the matter back to the judge below to se- lect 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 am icus 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 al- together. 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 in- dependence 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 administra- tion 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 reason- able 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. LT uAnna Wong practises civil litigation with Landy Marr Kats LLP in Toronto. She can be reached at awong@lmklawyers.com. Ancient laws can teach us BY PHILIP GIRARD J ustin Trudeau's January 2017 tweet, "To those f leeing persecution, terror and war, Canadians will welcome you, regardless of your faith. Diver- sity is our strength" was greeted warmly at the time, but it has been scrutinized more carefully recently as asylum seekers have been streaming across U.S. border points into Quebec. My goal is to examine the closing as- sertion of that tweet, as applied to law. My starting point is H. Patrick Glenn's Legal Traditions of the World: Sustain able Diversity in Law, now in its fifth edition. Glenn, a globally known comparatist, spent his entire career at McGill Law and served as the first non-American presi- dent of the American Society for Com- parative Law, an office he held at the time of his death in 2014. His work, informed by deep reading in both legal history and comparative law, transformed how comparative law is con- ceived in the academy. Traditionally, comparatists focused on common law and civil law and occasion- ally threw in Soviet law or "far Eastern" law for good measure. Each legal tradition (Glenn always spoke of legal "traditions," not "systems," a term he critiqued as both ahistorical and excessively rigid) was seen as a kind of silo, a product only of its own national past, narrowly conceived. Comparing these traditions might lead to a bit of law reform at the margins, but, overall, it was a rarefied intellectual exercise. Glenn's work broke deci- sively with this pattern in sev- eral ways. First, his approach to legal traditions was truly glob- al. He included indigenous law (or "chthonic law" as he called it), Hindu law, Islamic law, Confucian law and Talmudic law. Second, he brought history back in, arguing that legal tra- ditions had not evolved in isolation but in dialogue with each other. And, finally, he argued that while a process of cross-tradition borrowing is crucial to the future health of legal tra- ditions, it is important for each tradition to conserve its own integrity, rather than trying to achieve some kind of universal legal Esperanto. As he says, "Each major, complex le- gal tradition provides something to the world which the others do not, and prob- ably cannot, and each eventually comes to recognize this." We see this in operation in Canada in a variety of ways. Indigenous law helped shape the very idea of Canada early on and, after a long period of decline and suppression, is coming to the fore again as a source of ideas and practices that non- indigenous law is beginning to incorpo- rate. The debate about the inf luence of the Six Nations Confederacy on the shaping of American and, hence, Canadian federalism, will probably never be re- solved. Nevertheless, it seems clear that the framers of the U.S. constitution were impressed by the success and geograph- ic reach of the centuries-old confederacy, which brilliantly linked the strengths of each of its constituent nations into a large powerful confederal structure. By the time of Canadian Confedera- tion, such ideas had been so thoroughly Americanized that their original sources were obscured. More recently, the restorative justice elements of indigenous traditions have been rediscovered and incorporated into the criminal justice system. While sentencing circles, for example, have been mostly used for indigenous of- fenders, they are not in principle restrict- ed and may be used more widely for non- indigenous offenders in future. Where modern criminal law focuses on the breaking of rules, indigenous law focuses not on rules but on repairing the harm done by the offender's actions, an approach that is often more satisfactory for the victim, the offender and the com- munity. Civil law, meanwhile, has had an im- portant impact on the common law, both English and Canadian. The writings of French jurist Robert Pothier were highly inf luential on English judges as they re- constructed a law of contract in the 19 th century oriented around the notion of "will." The civilian technique of codification inf luenced the first statutory revisions in the common law provinces in the 1850s, as well as the Criminal Code of 1892. With the latter, Canada achieved something the United Kingdom never did: a full codification of the criminal law. Meanwhile, the demands of English- style case law in Quebec have given rise to more judicial elaboration of civil law concepts than is possible in France itself, with its highly opaque style of decision- writing; Quebec has also welcomed com- mon law institutions such as the trust. If Canadian law for a long time "toler- ated" or "managed" diversity, in the future, it may have to embrace it more fully if our law is truly to represent an increasingly di- verse population. In that respect, we may well turn to Glenn's accessible accounts of Hindu, Is- lamic, Confucian and Talmudic law as an entry point to the rich resources of those traditions, ancient traditions that may still have much to teach us. LT uPhilip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His email ad- dress is pgirard@osgoode.yorku.ca. u SPEAKER'S CORNER COMMENT That's History Philip Girard

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