AMICUS HOURLY RATES

Ontario v. Criminal Lawyers' Association ofOntario (O.N.C.A., April 19, 2011)(34317)

"In three cases arising in the context of criminal proceedings in Ontario, trial judges appointed amici curiae to assist the accused, who had discharged counsel of their choice.  The judges did so in order to maintain the orderly conduct of the trials or to avoid delay in these 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 fair trials without the assistance of counsel.  The Attorney General took the position that here, the amiciplayed a role similar to that of defence counsel and should accept legal aid rates.  However, the amici refused to accept those rates, and the judges fixed rates that exceeded the tariff and ordered the Attorney General to pay.  In one case, a judge also appointed a senior lawyer to set a budget for the amicus and to review, monitor and assess his accounts on an ongoing basis.  The Crown appealed the decisions, on the basis that courts lacked jurisdiction to fix the rates of compensation for amici curiae.  The 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 the terms and conditions of that appointment, including the rate of compensation and the monitoring of accounts."

The S.C.C. (5:4) allowed the appeal.

Justice Karakatsanis wrote as follows (at paragraphs 2, 5, 80-83, 85):

"It is not disputed that a court may appoint a lawyer as "amicus curiae", a "friend of the court", to assist the court in exceptional circumstances; or that the Attorney General is obligated to pay amici curiae when appointed.  What is at issue is whether a court's inherent or implied jurisdiction extends to fixing the rates of compensation for amici curiae.

… Absent statutory authority or a challenge on constitutional grounds, courts do not have the institutional jurisdiction to interfere with the allocation of public funds.  While the jurisdiction to control court processes and function as a court of law gives courts the power to appoint amici curiae, it does not, in itself, provide the power to determine what the Attorney General must pay them.  The scope of a superior court's inherent power, or of powers possessed by statutory courts by necessary implication, must respect the constitutional roles and institutional capacities of the legislature, the executive and the judiciary.  As the Chief Law Officers of the Crown, responsible for the administration of justice on behalf of the provinces, the Attorneys General of the provinces, and not the courts, determine the appropriate rate of compensation for amici curiae.

...In summary, the ability to fix rates of compensation is not necessary for the court to make its power to appoint amici curiae effective, and the judicial process will not be weakened or imperilled if compensation cannot be ordered.  Indeed, even following a Rowbotham application, when the courts have the jurisdiction to direct compensation for counsel appointed under s. 24(1) of the Charter, the courts have rarely found it necessary to direct the rates payable to defence counsel.

Allowing superior and statutory court judges to direct an Attorney General as to how to expend funds on the administration of justice, in the absence of a constitutional challenge or statutory authority, is incompatible with the different roles, responsibilities and institutional capacities assigned to trial judges, legislators and the executive in our parliamentary democracy.

In the end, what concerned the Court of Appeal was the proper course to follow if the Attorney General is unreasonable and a particular lawyer is not prepared to accept the rates for service as amicus.  While trial judges have a number of options regarding how to proceed in the face of such an impasse, they do not have the power to determine what a reasonable fee is or to order the government to pay it.  Such orders cross an impermissible line.  The other pillars of government are accountable for establishing spending priorities and, so long as their initiatives pass constitutional muster, have the institutional capacity to define public policy and find program solutions.  The Court must allow provinces the flexibility they require to meet their constitutional obligation to fund amici, when essential.

While the rule of law requires an effective justice system with independent and impartial decision makers, it does not exist independently of financial constraints and the financial choices of the executive and legislature.  Furthermore, in our system of parliamentary democracy, an inherent and inalienable right to fix a trial participant's compensation oversteps the responsibilities of the judiciary and blurs the roles and public accountability of the three separate branches of government.  In my view, such a state of affairs would imperil the judicial process; judicial orders fixing the expenditures of public funds put public confidence in the judiciary at risk.

… In light of the public importance of the issues engaged by this appeal, the parties will bear their own costs."