Supreme Court of Canada Deals a Blow to a Higher Rate of Pay for Amici Curiae

In three criminal cases in Ontario, the trial judges appointed amici curiae to assist the accused, who had fired their lawyers.  The judges did so in order to "maintain the orderly conduct of the trials" or to avoid delays in what they considered were complex, lengthy proceedings.  The cases were not decided under the Canadian Charter of Rights and Freedoms and did not proceed on the basis that the accused could not have had fair trials without the assistance of counsel.  An issue arose as to how much the province of Ontario should pay the amici.

 

The Attorney General of Ontario took the position that the three amici had played a role similar to that of defence counsel and should accept the legal aid rates that were paid to defence counsel.  The amici refused to accept those rates and the trial judges fixed rates that exceeded the legal aid tariff and ordered the Attorney General to pay.  The Attorney General appealed the decisions on the basis that the judges lacked the jurisdiction to fix the compensation for amici curiae.

 

The Ontario Court of Appeal dismissed the appeal, holding that, incidental to a superior or statutory court's power to appoint an amicus, is the power to set terms and conditions of that appointment, including a rate of compensation and monitoring of accounts. 

 

In a 5 - 4 decision, the Supreme Court of Canada allowed the Attorney General's appeal.  The majority (reasons written by Justice Karakatsanis) held that while it is true that courts of inherent or statutory jurisdiction have the power to appoint amici curiae, the doctrine of inherent jurisdiction does not operate without limits.  Such inherent and implicit powers are subject to any statutory provisions and must be responsive to the separation of powers that exist among the various players in the "Canadian Constitutional Order", in other words, the federal government and the provinces.  Justice Karakatsanis held that a court's inherent or implied powers must not trench on the provinces' role in the administration of justice.

 

The majority of the court reasoned that while the courts have the jurisdiction to set terms to give effect to their authority to appoint amici curiae, the ability to fix rates of compensation for an amicus is not essential to the power to appoint them and its absence does not imperil the judiciary's ability to administer justice according to law in a regular, orderly and effective manner.  

 

Justice Karakatsansis held that to the extent that the terms of an amicus' appointment mirrors the responsibilities of defence counsel, they blur the lines between those two roles.  A lawyer appointed as amicus who takes on the role of defence counsel is no longer a friend of the court.  An order requiring the Attorney General to compensate an amicus at a particular rate is an order directing the Attorney General to pay specific monies of public funds.  She held that the allocation of resources between competing priorities remains a public and economic question.  It is a political decision and the legislature and the executive are accountable to the public for it.  

 

The Supreme Court held that in cases that do not involve a constitutional challenge, making a payment order does not respect the institutional roles and capacities of the legislature, the executive and the judiciary or the principle that the legislature and executive are accountable to the public for the spending of public funds.  Accordingly,the inherent or applied jurisdiction of superior or statutory courts to appoint amici does not extend to setting rates of compensation for amici.  

 

As a result of this decision, the Ontario Criminal Lawyers Association, has indicated that it will seek to meet with the Attorney General to come to an agreement about a compensation protocol for amici.  

 
See - Ontario v. Criminal Lawyers Association of Ontario 2013 SCC 43

 

Regards,

 

Blair