The case involves three separate criminal trials where the judges appointed amici curiae for the unrepresented accused, set their rate of pay, and ordered the Ministry of the Attorney General to pay them from public funds. The Crown argued the courts do not have the authority to set an amicus curiae’s rate of pay and only Parliament can decide how public money is spent.
The Criminal Lawyers’ Association, which originally intervened in the case and is now the respondent, argues that the courts should be able to determine the compensation for amicus curiae and they should receive fair payment.
“It’s our members who end up being appointed as amicus curiae in criminal trials and obviously our members have an interest in making sure we’re paid at a fair and reasonable rate,” says Andras Schreck, the CLA’s counsel in the case. “[T]he legal aid rate is not a fair and reasonable rate, it’s a grossly inadequate rate.”
For example, says Schreck, if the Crown retained him to prosecute a case, he would be paid $192/hour. However, the Crown argues that if the judge asks him to be on the case to assist the court, then he should be paid $106/hour. “That’s not reasonable,” he says.
A year ago, the Ontario Court of Appeal dismissed the appeal in R. v. Russel, ruling that the courts do have jurisdiction to appoint an amicus curiae and determine his or her compensation.
“Where the court concludes that it is necessary to appoint amicus, it is for the court, not the Attorney General or Crown counsel to set the terms of the appointment. . . . The jurisdiction to appoint amicus must necessarily include the power to set the terms under which amicus will function, including the rate of compensation,” wrote justices Marc Rosenberg, Stephen Goudge, and Robert P. Armstrong in the decision.
“The court could not fulfil its function to administer justice according to law if it could create the role of amicus where that was necessary, but had no power to ensure that the role was filled because it could say nothing about the rate of compensation. We therefore conclude that the jurisdiction to appoint amicus necessarily extends to fixing the rate of compensation,” the judges added.
Adds Schreck: “There are other problems with the Crown being able to unilaterally decide how much amicus curiae gets paid. This is someone appointed by the court to assist the court and the court should be able to determine who that is and what they get paid.”