The SCC Restricts Court Powers Regarding Amici Curiae: Fees are Non-Negotiable

In Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 [Ontario v CLA], the Supreme Court of Canada (SCC) held, in a 5:4 decision, that without legislative authority or a constitutional challenge, the jurisdiction to appoint amici curiae does not allow the court to assign what financial remuneration they will receive from the Ministry of the Attorney General (MAG). The role of an amicus curiae in the criminal court is often misunderstood, as is the Court’s role in appointing one. The competing interests regarding their appointment are surprisingly complex, and include the accused’s right to represent himself at trial, fairness and efficiency in the trial process, and potential undercutting of state-funded legal aid programs. The latter was the particular focus of the recent SCC decision.

Right of the Accused to a Fair Trial

There are two competing notions regarding the appointment of an amicus and the Charter right to a fair trial: (1) is the appointment of an amicus essential to ensure that the accused receives fair treatment by the State, and (2) is the presence of an amicus, which is as a ‘friend of the court’ and not as defence counsel, going to undermine a potential defence that a self-represented accused may proffer?

Indeed, the SCC acknowledged that while the role of the amicus closely mirrors that of a defence counsel, they may also be required to make submissions contrary to the accused’s wishes. This stems from their ultimate duty as an officer of the court, absent a true fiduciary relationship with the accused. An amicus is typically appointed to assist unrepresented accused, as a duty to the court. In these cases, often the accused has not been eligible for legal aid funding, and as such the amicus is restricted in their function as a friend of the court. In paras 49-56 the majority surveyed the situation in which the amicus becomes defence counsel. It is of particular note that while still relevant to preserving a fair trial, the amicus who takes on an expanded role is no longer a friend of the court.

Doctrine of Inherent Jurisdiction

It is within the inherent jurisdiction of the trial courts to appoint amici to assist the accused in receiving a fair trial. However, as noted in paras 57-61, orders for MAG to provide compensation to amici at a particular rate must be grounded in law. This may consist of a statutory framework, or a Charter challenge, unless it is included in the inherent jurisdiction of the court. Additionally, the majority was concerned with the appointment of amici becoming a routine practice that supplants the province solving systemic problems.

The role of judicial activism is an ongoing and hotly contested topic in legal ethics. The division between the judiciary and parliament was the central focus of the decision in Ontario v CLA regarding setting the fees of amici. Indeed, the majority held that the superior courts are not constitutionally entitled to take the role of allocating public funds. Since amici are paid by MAG, absent a Charter challenge, the judiciary is not able to set the compensation that is rendered. As stated by Karakatsanis J. for the majority on para 43:

“…the allocation of resources between competing priorities remains a policy and economic question; it is a political decision and the legislature and the executive are accountable to the people for it.”

As such, it would appear that the SCC is serving to limit judicial activism with respect to allocating public funds and potentially skirting the legal aid regime. The CLA argued that the courts use discretion to set rates of remuneration for amici so infrequently and for such small amounts that they do not engage public policy concerns. However, the majority was concerned with consistency among the 242 judges of the Ontario Superior Court of Justice, with the predominant concern being the undermining of Legal Aid Ontario (para 77).

Courts May Fix Amicus Fees in Limited Circumstances

Despite the decision above, when Charter rights are identified as being at stake in a trial, it remains open to a court of competent jurisdiction to fix fees for amici when it is just to do so. This is consistent with the decision of Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, where it was held that s. 24(1) of the Charter should be flexible to meet the circumstances of each respective case.

In other circumstances where amici are appointed, but Charter rights are not at stake, the majority in Ontario v CLA indicated that the judge may be allowed non-binding input on the fees of the appointed amicus. Where MAG and the appointed amicus are unable to resolve the fees and the assistance of an amicus is truly essential to the trial process, the judge may impose a stay of proceedings until an amicus is found. In those cases, the judge may give reasons on record, in order to clearly and properly attribute the delay (para 76).

Conclusion

The decision rendered in Ontario v CLA sets very clear restrictions on the payment of court-appointed amici. Citing concerns about the courts surpassing their Constitutionally permissible inherent jurisdiction, unless there is a specific statutory mandate or Charter right(s) at stake, the trial courts may not set fees. To do so would risk undermining the provincial legal aid regimes and the SCC majority feared the public losing faith in the administration of justice as a result of side-stepping the Constitution.

This decision is displeasing to the private bar, as the legal aid regimes have been under fire for their inflexibility and failure to evolve with the economy and judicial system. Indeed, this is a problem that has been recognized as recently as this summer by the chair of Legal Aid Ontario, John McCamus. Despite a strong dissent penned by Fish J., the resulting decision risks amici receiving inadequate compensation. This is particularly problematic due to the role of amici as friends of the court, and not as defence lawyers doing “true” legal aid work. Although the decision is a controversial one, it is likely one that will spark some legislative discussion and may influence an overdue evolution of the provincial legal aid regimes.