Courts can’t determine pay for amici curiae: SCC

Although the courts have the power to appoint amici curiae, they can’t set their fees, according to the Supreme Court of Canada.

Norman Boxall, president of the Criminal Lawyers’ Association and a founding partner of Bayne Sellar Boxall LLP in Ottawa, says the court’s 5:4 decision in Ontario. v. Criminal Lawyers' Association of Ontario is “extremely disappointing.”

“It’s all the more disappointing because the minority points out that even if there was the power to set rates, they’d want it to be negotiated [and] history seems to indicate that the attorney general rarely, if ever, is prepared to negotiate rates and that if there was a sense that a fair rate would be set then perhaps we wouldn’t need the courts’ power to set it.

"But there’s no dispute that the rates being set at the legal aid tariff are inadequate and bear no resemblance to a private rate,” he tells Legal Feeds.

The ruling relates to four criminal cases in which the trial judges appointed amici curiae, determined their rate of pay, and then ordered the attorney general to pay them from public funds. The attorney general argued the courts do not have the authority to set the fees for amici curiae. The Court of Appeal disagreed, ruling the courts do have the power to appoint amici curiae as well as set the rate of compensation and monitor the accounts.

But the Supreme Court ruled against the Court of Appeal’s decision. On behalf of the majority, Justice Andromache Karakatsanis wrote: “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.”

Boxall is doubtful amici curiae will receive adequate compensation following the SCC’s ruling.

“Without the potential of the court being able to set the rate, then it becomes dependent on the attorney general doing what’s right to fix a fair rate and so far that’s not been forthcoming in the vast majority of cases,” he says.

“One would hope that the attorney general would then engage in meaningful discussions to set a proper rate but they seem determined to link it to the legal aid rate and this is in our view wrong. This is not legal aid work when you’re working for the court, and there’s no reason that only defence lawyers have to work at legal aid rates.”

Justice Morris Fish, on behalf of the dissenting minority, argues the courts should be able to set the fees for amici curiae and that there is “no constitutional impediment” in doing so.

“[O]nce a trial judge names and defines the role of an amicus curiae, a consensual approach ought to be favoured. The Attorney General and the amicus should be invited to agree on both the rate of remuneration and the manner in which the amicus’s budget is to be administered. If an agreement cannot be reached, the trial judge should fix the rate. The Attorney General then has the option of either paying the fee or staying the proceedings as a matter of prosecutorial discretion,” he wrote.

The minority provides three reasons as to why the attorney general should not have the authority to fix amici curiae’s fees:

1.    It would weaken the courts’ power to appoint amici curiae because they would only be able to choose from counsel willing to be paid at the rate set by the attorney general.
2.    The integrity of the judicial process would be at risk because the court’s ability to ensure a fair and orderly process shouldn’t depend on the “continuous exemplary conduct of the Crown.”
3.    The attorney general’s unilateral control over amici curiae’s pay could make them appear biased and put them in a conflict of interest.

Since it was such a close decision, Boxall anticipates there will be constitutional challenges in appropriate cases.

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