“After completing his review of the law of the appointment and role of amicus, the trial judge set out his own summary of the features of amicus curiae in paragraph 43 of his decision, a summary he describes as extracted primarily from the Supreme Court of Canada and Provincial and Federal appellate courts:
(a) The ultimate and primary purpose is to provide assistance to trial judges on issues of law or facts, wherein the trial judge is of the view that an effective, fair and just decision cannot be made without such assistance.
(b) Such orders are made to ensure a fair trial process, the orderly conduct of proceedings and to ensure the proper administration of justice.
(c) It is usually driven by the initiative of the judge, but may also occur at the request of one or more of the parties.
(d) There are many scenarios to which amicus may apply. The class of scenarios is not closed. There is no “one size fits all” standard.
(e) The power to appoint has a high threshold. Such should be exercised sparingly and with caution. Appointments should be made in response to specific and exceptional circumstances. A judge must not externalize his or her duty to ensure a fair trial of unrepresented accused by shifting the responsibility to amicus curiae, who under a different name assume a role nearly identical to that of defence counsel.
(f) The judge decides the terms and conditions of the role, which may vary widely.
(g) Caution is to be exercised if an appointment mirrors the role of a defence counsel. The primary purpose must still be to assist the court, though there may be an incidental beneficial result for a party. In such a case, clear directions must be given to the party and amicus.
(h) There is no solicitor-client privilege between an amicus and a party.
(i) Only the judge can dismiss an amicus, not the party.
(j) An amicus may override so-called instructions or directions from a party. An amicus may operate if the party does not co-operate or remains mute or chooses not to attend court.
(k) Once an amicus order is made, the Attorney General is obligated to compensate the amicus. Although amicus may often be paid by the legal aid fund, that is not always necessarily so. There should be a negotiation process between the Attorney General and an intended amicus as to compensation. The judge may play a role in this process that is persuasive only. If the judge is not satisfied as to the compensation issue, the judge ought to consider the issuing of a stay of proceeding until the compensation issue can be resolved.”
Morwald-Benevides v. Benevides, 2019 ONSC 1136 (CanLII) at 20