SCC Decision on Amicus Compensation

The Supreme Court of Canada released the decision in Ontario v. Criminal Lawyers’ Association of Ontario last week, dealing with the compensation afforded to amicus curiae. Courts may appoint a “friend of the court,” known as amicus curiae, to assist the court where warranted, and the Attorney General is required to pay the fees for these amicus curiae.

This case involved the appeal of three non-Charter cases in Ontario where the Attorney General disputed the amicus curiae rates as determined by the court, raising constitutional issues about the relationship between the judiciary and the executive and legislative branches in our society.

The rates set by the court in these cases exceeded the Legal Aid rate in each of these cases because the amicus curiae refused these lower rates. The Attorney General sought to pay the Legal Aid rate because they proposed these amicus curiae played a role similar to defence counsel.

The Ontario Court of Appeal held that the ability to appoint amicus curiae is part of the inherent jurisdiction of the court, and judges must must be able to secure the appropriate assistance so that serious criminal cases involving an unrepresented accused can still proceed.

Justice Fish’s dissent held that the ability to determine amicus rates flowed from the court’s inherent jurisdiction and need to control its own processes on the following basis:

 (1) the inability to set rates of compensation would unduly weaken the court’s appointment power and ability to name the amicus of its choice (para. 123);
(2) the integrity of the judicial process would be imperilled and should not be dependent upon the Crown (para. 124); and
(3) unilateral control by the Attorney General over remuneration might create an apprehension of bias and place an amicus in a conflict of interest (para. 125). 

Karakatsanis J. held for the majority that courts do not have the jurisdiction to interfere with the public allocation of funds unless there is an express statutory basis or a constitutional challenge. She noted that the way courts exert their inherent jurisdiction can still be structured by the legislature and the constitutional framework in which they exist, and courts should consider whether the other branches are better placed constitutionally to make certain decisions.

Inherent jurisdiction courts do not have the power to staff the court, which is a provincial responsibility. Absent a challenge on the basis of the Charter or the principle of judicial independence, inherent jurisdiction does not allow courts to enter political matters like the allocation of public funds. Although appointing amici does not necessarily cross into the provincial responsibility, where their roles mirror defence counsel the following concerns can be identified:

1. The amici may conflict with the right of accused to represent themselves
2. It can undermine political decisions about appointing state-funded counsel
3. A potential conflict exists between the interests of the accused and the amicus‘ duty to the court, especially where submissions are contrary to the accused’s instructions or are otherwise unfavourable
4. Appointing amici in this manner could undermine the provincial legal aid scheme under the Legal Aid Services Act

Inherent jurisdiction cannot be used to insist that the Attorney General pay a higher rate to attract a specific court reporter or interpreter, roles that are both essential to the functioning of the court system. If amicus refuse the rates offered to them the province can create a roster of qualified counsel who are willing to accept the rates provided by the Attorney General.

Justice Karakatsanis concluded that fixing rates of compensation is not necessary in order to make their power to appoint amici curiae effective,

[84] …the ability to set rates of compensation for amici does not form part of the inherent jurisdiction of a superior court. Given this conclusion, it follows that the ability to set rates of compensation for amici does not form part of the implicit powers of a statutory court to function as a court of law.