POWER OF THE PURSE - Judges and the power of Parliament

In 1688 the sadly inept King James II was deposed by The Glorious Revolution. The Revolution was led by a union of Parliamentarians with an invading army led by the Dutch stadtholder William III of Orange-Nassau (William of Orange), who ultimately ascended the throne as William III. It would not be extreme to suggest the Revolution of 1688 made the English speaking world what it is today – it solidified Parliamentary jurisdiction over the monarch and created, in the Bill of Rights 1689, certain rights and freedoms we recognize today as fundamental including freedom from royal interference with the law, freedom to elect members of Parliament without interference from the Sovereign, the limited freedom of speech and freedom from cruel and unusual punishments, and excessive bail, among other things.

One of the most important results of the Revolution, however, was freedom from taxation by royal prerogative, without agreement by Parliament. Canada’s Constitution requires that legislation imposing taxes must originate in the House of Commons, or Provincial legislature, and be preceded by a royal recommendation. This is a means of insuring that the elected chamber and a Cabinet Minister will take primary responsibility for taxation. Taxes must, in some way, be approved by the electorate.

The limitation on taxation, that it must be approved by the elected representatives of the nation, is a basic principle of Canadian constitutional law – spending is to be approved by Parliament or a legislature. But it is this principle that is running up against an unexpected challenge - - the judiciary whose job it is to protect Canada’s Constitution are increasingly ordering governments to spend money in ways not approved by or authorized by Parliament or Provincial legislatures. In ordering the Government to do something, the Courts are inevitably ordering the Government to spend money.

Recent court decisions ordering the Federal or provincial governments to pay lawyers money to represent accused are some of the clearest examples of moving the power of the purse from elected representatives to the courts. So, for example, in the Tehrankari case a judge ordered the Ontario government to pay a defence lawyer nearly double the regular legal-aid rate to fight a murder trial. In making the payment order, the judge rejected the province's stand that judges have no business "appropriating money from the provincial coffers" to impose their view of a fair fee.

The ruling was made a day after several lawyers with a steady clientele of terrorism suspects told a Federal Court of Canada judge that they can no longer accept legal-aid fees, since they do not provide enough income to even cover their office overhead. And those lawyers do, in fairness, have a point – legal aid rates are simply too low for senior lawyers to even consider taking on a case without some extra funding.

It is on this issue, payment for lawyers, that two constitutional principles come in conflict. One principle is that only elected representatives can authorize spending. The other principle is that every accused is entitled to a fair trial - - and in a legally complex case, a fair trial may require a seasoned and senior (and costly) lawyer.

The problem, put narrowly, is that two constitutional principles seem to conflict. The principle that only the elected legislature has the power of the purse conflicts with the principle that everyone ought to have a full and just hearing before the Courts.

The payment schedules for Legal Aid in Ontario, although they have increased in recent years, are still far lower than the rates customarily charged by lawyers. There are historical and practical reasons for these low payment rates but the effect of these low rates is that senior lawyers are seldom able to take lengthy or complex criminal legal aid cases and such cases end up with either the criminal accused representing themselves (seldom a situation conducive to just or accurate fact finding) or junior lawyers effectively learning their trade acting as counsel (also a problematic situation).

So as to avoid this on-going problem, the Courts have been more and more inclined to order that an enhanced rate of payment (usually in the $150 an hour range) be made payable by the Government to counsel acting on behalf of criminal accused. In so doing the Court, often implicitly, say a fair trial is more important than taxation without representation.