Both Superior Court and Ontario Court have authority to appoint and direct compensation for amicus curiae

R. v. Russel, 2011 ONCA 303, released today on line, provides:

[30]         Although the Attorney General concedes that judges of a superior court and a statutory court such as the Ontario Court of Justice, have jurisdiction to appoint amicus curiae, it is important to identify the source of that jurisdiction to understand the limits of the power.  Although not in issue in these cases, one obvious source of jurisdiction is s. 24(1) of the Canadian Charter of Rights and Freedoms, which provides as follows:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[31]         In our view, the superior court and statutory courts are courts of competent jurisdiction for the purpose of granting a s. 24(1) remedy, such as the appointment of amicus:  see R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, at paras. 90 - 93.  While s. 24(1) is generally viewed as a provision to remedy prior infringements of rights, it can also operate to prevent apprehended infringement rights.  The Supreme Court of Canada made this clear in New Brunswick (Minister of Health and Community Services)  v. G. (J.), [1999] 3 S.C.R. 46, at para. 51, where Lamer C.J. said as follows:

This Court has held on a number of occasions that remedies can be ordered in anticipation of future Charter violations, notwithstanding the retrospective language of s. 24(1): Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; R. v. Vermette, [1988] 1 S.C.R. 985; R. v. Harrer, [1995] 3 S.C.R. 562. In Harrer, McLachlin J., concurring in the result, held at para. 42 that "[s]ection 24(1) applies to prospective breaches, although its wording refers to 'infringe' and 'deny' in the past tense". In Operation Dismantle, Dickson J. (as he then was) held at p. 450 that an applicant requesting a remedy for a prospective breach "must at least be able to establish a threat of violation, if not an actual violation, of their rights under the Charter". He also found at p. 458 that courts require proof of "probable future harm" before ordering such a remedy. [Emphasis added.]

[32]         Indeed s. 24(1) is the source of jurisdiction for the so-called Rowbotham order (R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.)), which gives a judge the power to stay proceedings until the state provides funding for counsel in circumstances where counsel is necessary to secure a fair trial.  As the court said at p. 70:

Where the trial judge is satisfied that an accused lacks the means to employ counsel, and that counsel is necessary to ensure a fair trial for the accused, a stay of the proceedings until funded counsel is provided is an appropriate remedy under s. 24(1) of the Charter where the prosecution insists on proceeding with the trial in breach of the accused's Charter right to a fair trial. It is unnecessary in this case to decide whether the trial judge in those circumstances would also be empowered to direct that Legal Aid or the appropriate Attorney General pay the fees of counsel.

[33]         It will be observed that in this passage the court left open the question of whether s. 24(1) also gives a court jurisdiction to order the state or legal aid authorities to pay for counsel.  There can now no longer be any doubt that s. 24(1) does give the court the power to order the Crown to compensate counsel, in an appropriate case, as where the less intrusive remedy of a stay of proceedings would not be appropriate.  Thus, see New Brunswick (Minister of Health and Community Services) v. G. (J.), a child protection proceeding, at para. 101:

There are only two possible remedies a judge can order under s. 24(1) to avoid a prospective s. 7 breach in circumstances where the absence of counsel for one of the parties would result in an unfair hearing: an order that the government provide the unrepresented party with state-funded counsel, or a stay of proceedings. A stay of proceedings is clearly inappropriate in this case, as it would result in the return of the children to the appellant's custody. Children should not be returned to their parent's care when there is reason to suspect that they are in need of protection. Indeed, this would run contrary to the purposes of Part IV of the Family Services Act. The government must, therefore, provide the appellant with state-funded counsel. [Emphasis added.