Her Majesty The Queen Appellant v. Criminal Lawyers’ Association of Ontario and Lawrence Greenspon, 2013 SCC 43

SUPREME COURT OF CANADA Citation: Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 Date: 20130801 Docket: 34317 Between: Her Majesty The Queen Appellant and Criminal Lawyers’ Association of Ontario and Lawrence Greenspon Respondents - and - Attorney General of Canada, Attorney General of Quebec, Attorney General of Manitoba, Attorney General of British Columbia, British Columbia Civil Liberties Association, Advocates’ Society and Mental Health Legal Committee Interveners Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

Reasons for Judgment: (paras. 1 to 85) Dissenting Reasons: (paras. 86 to 143) Karakatsanis J. (McLachlin C.J. and Rothstein, Moldaver and Wagner JJ. concurring) Fish J. (LeBel, Abella and Cromwell JJ. concurring) Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 Her Majesty The Queen Appellant v. Criminal Lawyers’ Association of Ontario and Lawrence Greenspon Respondents and Attorney General of Canada,

Attorney General of Quebec, Attorney General of Manitoba, Attorney General of British Columbia, British Columbia Civil Liberties Association, Advocates’ Society and Mental Health Legal Committee Interveners Indexed as: Ontario v. Criminal Lawyers’ Association of Ontario 2013 SCC 43 File No.: 34317. 2012: December 12; 2013: August 1.

Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. on appeal from the court of appeal for ontario Courts — Jurisdiction — Appointment of amici curiae — Provincial Attorney General and amici curiae appointed by trial judges in criminal proceedings disagreeing on amici’s rate of remuneration — Whether superior and statutory courts have inherent or implied jurisdiction to determine rate of remuneration of amici curiae.

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 amici played 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. Held (LeBel, Fish, Abella and Cromwell JJ. dissenting): The appeal should be allowed. Per McLachlin C.J. and Rothstein, Moldaver, Karakatsanis and Wagner JJ.: Courts of inherent jurisdiction have the power to appoint amici curiae exceptionally, where this is necessary to permit a particular proceeding to be successfully and justly adjudicated.

This power is also implied by the ability of statutory courts to function as courts of law. Amici curiae have long played a

part in our system of justice. However, to the extent that the terms of an amicus ’ appointment mirror the responsibilities of defence counsel, they blur the lines between those two roles.

The appointment of an amicus for such a purpose can conflict with the accused’s constitutional right to represent himself, can defeat previous judicial decisions to refuse to grant state-funded counsel following an application invoking the accused’s fair trial rights under the Charter , can require the amicus to make legal submissions that are not favourable to the accused or are contrary to the accused’s wishes, can result in the court’s lawyer taking on a role that the court is precluded from taking and can undermine the provincial legal aid scheme.

Hence, a lawyer appointed as amicus who takes on the role of defence counsel is no longer a friend of the court. Absent authority flowing from a constitutional challenge or a statutory provision, the jurisdiction to fix the compensation of amici curiae must be found within the inherent or implied jurisdiction of the courts. The inherent jurisdiction of superior courts permits them to make orders necessary to protect the judicial process and the rule of law and fulfill the judicial function of administering justice in a regular, orderly and effective manner.

Similarly, to function as courts of law, statutory courts have implicit powers. However, the doctrine of inherent jurisdiction does not operate without limits. Such inherent and implicit powers are subject to any statutory provisions and must be responsive to the separation of powers that exists among the various players in our constitutional order and the particular institutional capacities that have evolved from that separation.

The development of separate executive, legislative and judicial functions has allowed for the evolution of certain core competencies in the various institutions vested with these functions. A court’s inherent or implied powers must not trench on the provinces’ role in the administration of justice.

While the courts have the jurisdiction to set terms to give effect to their authority to appoint amici curiae , the ability to fix rates of compensation for amici is not essential to the power to appoint them and its absence does not imperil the judiciary’s ability to administer justice according to law in a regular, orderly and effective manner. Furthermore, an order that the Attorney General must provide compensation to an amicus at a particular rate is an order directing the Attorney General to pay specific monies out of public funds.

While court decisions can have ancillary financial consequences, 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 public for it.

Making such an order absent authority flowing from a constitutional challenge or a statutory provision does not respect the institutional roles and capacities of the legislature, the executive (including the Attorney General), and the judiciary, or the principle that the legislature and the executive are accountable to the public for the spending of public funds.

There is a real risk that such a disregard of the separation of powers and the constitutional role and institutional capacity of the different branches of government could undermine the legal aid system and cause a lack of public confidence in judges and the courts. Accordingly, superior and statutory courts’ inherent or implied jurisdiction to appoint amici does not extend to setting rates of compensation for amici and ordering the provinces to pay.

In those exceptional cases where Charter rights are not at stake but the judge must have help to do justice and appoints anamicus, the person appointed and the Attorney General should meet to set rates and modes of payment. The judge may be consulted, butshould not make orders regarding payment that the Attorney General would have no choice but to obey. If the assistance of an amicus istruly essential and the matter cannot be amicably resolved between the amicus and the Attorney General, the judge’s only recourse maybe to exercise his jurisdiction to impose a stay until an amicus can be found.

If the trial cannot proceed, the court can give reasons forthe stay, so that the responsibility for the delay is clear. Per LeBel, Fish, Abella and Cromwell JJ. (dissenting): Trial judges may appoint an amicus curiae to ensure the orderlyconduct of proceedings and the availability of relevant submissions. They should not be required to decide contested, uncertain, complexand important points of law or of fact without the benefit of thorough submissions. The power to appoint an amicus should be exercisedexceptionally and with caution.

An amicus should not be appointed to impose counsel on an unwilling accused or permit an accused tocircumvent the established procedure for obtaining government-funded counsel. Furthering the best interests of the accused may be anincidental result, but is not the purpose, of an amicus appointment. The jurisdiction to fix the fees of amici curiae is necessarily incidental to the power of trial judges to appoint them. Granting the provincial Attorney General the exclusive power to fix an amicus’s rate of remuneration would unduly weaken the courts’appointment power and ability to name an amicus of their choosing.

It would also imperil the integrity of the judicial process, as theability of courts to ensure fair and orderly process should not depend on a reliance on the continuous and exemplary conduct of theCrown, which is impossible to monitor or control. Finally, the Attorney General’s unilateral control over the remuneration of amicicuriae might create an appearance of bias and place amici themselves in an unavoidable conflict of interest.

As amici often play a rolethat can be said to be adversarial to the Crown, if the Crown were permitted to determine unilaterally and exclusively how much anamicus is paid, the reasonable person might conclude that the expectation of give and take might lead the amicus to discharge his dutiesso as to curry favour with the Attorney General. There is no constitutional impediment to vesting in trial judges the authority to fix the fees of amici curiae when necessaryin the circumstances.

The principle that only Parliament can authorize payment out of money from the Consolidated Revenue Fund actsonly to constrain the ability of the executive branch of government to spend money in the absence of authorization by the legislature. Here, however, the Attorney General has the authority to disburse public funds to pay amici curiae whether or not their rate ofremuneration is fixed by the courts, because, with the Financial Administration Act, R.S.O. 1990, c. F.12, the Legislative Assembly haspre-approved the disbursement of funds for the purpose of satisfying court orders.

Once a trial judge names and defines the role of an amicus curiae, a consensual approach ought to be favoured. TheAttorney General and the amicus should be invited to agree on both the rate of remuneration and the manner in which the amicus’sbudget is to be administered. If an agreement cannot be reached, the trial judge should fix the rate.

In fixing the rate of remuneration,the judge should consider the importance of the assignment undertaken, the legal complexity of the work, the skill and experience ofcounsel and his normal rate, and should consider that the amicus is performing a public service paid for with public funds. While thelegal aid tariff should be taken into account as a guide, it is not determinative. The ultimate choice of whether to proceed with theprosecution in light of the associated costs remains that of the Attorney General, which thus preserves the proper balance betweenprosecutorial discretion and the jurisdiction of courts.

Cases Cited By Karakatsanis J. Distinguished: R. v. White, 2010 SCC 59, [2010] 3 S.C.R. 374; Ontario v. Figueroa (2003), (ON CA),64 O.R. (3d) 321; discussed: Auckland Harbour Board v. The King, [1924] A.C. 318; referred to: Attorney General of Canada v. LawSociety of British Columbia, (SCC), [1982] 2 S.C.R. 307; MacMillan Bloedel Ltd. v.

Simpson, (SCC),[1995] 4 S.C.R. 725; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC),[1997] 3 S.C.R. 3; Reference re Amendments to the Residential Tenancies Act (N.S.), (SCC), [1996] 1 S.C.R. 186;Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, Grand Falls District 50 Branch,(SCC), [1986] 1 S.C.R. 549; B.C.G.E.U. v. British Columbia (Attorney General), (SCC), [1988] 2 S.C.R.214; R. v. Morales, (SCC), [1992] 3 S.C.R. 711; R. v. Hinse, (SCC), [1995] 4 S.C.R. 597; R. v. Rose,(SCC), [1998] 3 S.C.R. 262; R. v.

Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331; R. v. Caron, 2011 SCC 5, [2011] 1S.C.R. 78; Al Rawi v. Security Service, [2011] UKSC 34, [2012] 1 A.C. 531; Batistatos v. Roads and Traffic Authority of New SouthWales, [2006] HCA 27, 227 A.L.R. 425; Fraser v. Public Service Staff Relations Board, (SCC), [1985] 2 S.C.R. 455;Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; New Brunswick Broadcasting Co. v. Nova Scotia(Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319; R. v. Power, (SCC), [1994] 1S.C.R. 601; Doucet-Boudreau v.

Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Newfoundland (Treasury Board)v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; Canada(Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Re Residential Tenancies Act, 1979, (SCC), [1981] 1 (SCC), [1991] 1 S.C.R. 933; R. v. Chan, 2002 ABCA 299, 317 A.R. 240 (sub nom. R. v. Cai); R. v. Ho, 2003 BCCA 663, 190 B.C.A.C.187; New Brunswick (Minister of Health and Community Services) v.

G. (J.), (SCC), [1999] 3 S.C.R. 46; R. v.Rockwood (1989), (NS CA), 91 N.S.R. (2d) 305; Child and Family Services of Winnipeg v. J. A., 2003 MBCA 154,180 Man. R. (2d) 161; R. v. Ryan, 2005 NLCA 44, 199 C.C.C. (3d) 161; R. v. Gagnon, 2006 YKCA 12, 230 B.C.A.C. 200; Grollo v.Palmer (1995), 184 C.L.R. 348. By Fish J. (dissenting) R. v. Rowbotham (1988), (ON CA), 41 C.C.C. (3d) 1; Québec (Procureur général) v. C. (R.) (2003), 2003

Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v.Cairenius (2008), (ON SC), 232 C.C.C. (3d) 13; R. v. Samra (1998), (ON CA), 41 O.R. (3d) 434;R. v. Lee (1998), (NWT SC), 125 C.C.C. (3d) 363; R. v. Bain, (SCC), [1992] 1 S.C.R. 91; Referencere Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3; AucklandHarbour Board v. The King, [1924] A.C. 318; Ontario v. Figueroa (2003), (ON CA), 64 O.R. (3d) 321; Krieger v.Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; R. v.

White, 2010 SCC 59, [2010] 3 S.C.R. 374; R. v. Chemama, 2008 ONCJ140 Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, s. 24(1). Constitution Act, 1867, ss. 63, 92(14), 96, 126. Criminal Code, R.S.C. 1985, c. C-46, ss. 486.3, 684, 694.1(1), (3). Financial Administration Act, R.S.O. 1990, c. F.12, ss. 11.1(1), 13. Legal Aid Manitoba Act, C.C.S.M. c. L105, s. 3(2). Legal Aid Services Act, 1998, S.O. 1998, c. 26. Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 5. Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 22.

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 13.02. Rules of the Supreme Court of Canada, SOR/2002-156, r. 92. Supreme Court Act, R.S.C. 1985, c. S-26, s. 53(7). Authors Cited Berg, David. “The Limits of Friendship: the Amicus Curiae in Criminal Trial Courts” (2012), 59 Crim. L.Q. 67. Canadian Judicial Council. Alternative Models of Court Administration. Ottawa: The Council, 2006 (online: http://www.cjc.gc.ca). Covey, Frank M., Jr. “Amicus Curiae: Friend of the Court” (1959), 9 DePaul L. Rev. 30. Dickens, Bernard M. “A Canadian Development: Non-Party Intervention” (1977), 40 Mod. L. Rev. 666. Edwards, J.

L. J. The Law Officers of the Crown. London: Sweet & Maxwell, 1964. Halsbury’s Laws of England, 4th ed. (reissue), vol. 37. London: Butterworths LexisNexis, 2001. Jacob, I. H. “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23. Mallette, Jonathan Desjardins. La constitutionnalisation de la juridiction inhérente au Canada: origines et fondements. Mémoire demaîtrise non-publié.

Faculté de Droit, Université de Montréal, 2007. “Memorandum — Requests for the appointment of an advocate to the court”, reproduced in Lord Goldsmith, “Advocate to the Court”,Law Society Gazette, February 1, 2002 (online: http://www.lawgazette.co.uk). Mohan, S. Chandra. “The Amicus Curiae: Friends No More?”, [2010] S.J.L.S. 352. Romney, Paul. Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature 1791-1899. Toronto: OsgoodeSociety, 1986.

APPEAL from a judgment of the Ontario Court of Appeal (Rosenberg, Goudge and Armstrong JJ.A.), 2011 ONCA 303, 104O.R. (3d) 721, 277 O.A.C. 264, 270 C.C.C. (3d) 256, 86 C.R. (6th) 407, 234 C.R.R. (2d) 157, [2011] O.J. No. 1792 (QL), 2011CarswellOnt 2608, affirming orders for the setting of rates of compensation for and the monitoring of accounts of amici curiae. Appealallowed, LeBel, Fish, Abella and Cromwell JJ. dissenting. Malliha Wilson, Troy Harrison, Kristin Smith and Baaba Forson, for the appellant. P. Andras Schreck and Louis P. Strezos, for the respondent the Criminal Lawyers’ Association of Ontario.

No one appeared for the respondent Lawrence Greenspon. Alain Préfontaine, for the intervener the Attorney General of Canada. Jean-Yves Bernard and Brigitte Bussières, for the intervener the Attorney General of Quebec.

Written submissions only by Deborah Carlson and Allison Kindle Pejovic, for the intervener the Attorney General ofManitoba. Bryant Alexander Mackey, for the intervener the Attorney General of British Columbia. Micah B. Rankin, Michael Sobkin and Elizabeth France, for the intervener the British Columbia Civil Liberties Association. John Norris, for the intervener the Advocates’ Society. Anita Szigeti, Mercedes Perez and Marie-France Major, for the intervener the Mental Health Legal Committee. The judgment of McLachlin C.J. and Rothstein, Moldaver, Karakatsanis and Wagner JJ. was delivered by Karakatsanis J. — I.

Introduction [1] This case raises troubling implications that strike to the heart of the constitutional relationship between the judicialand other branches of government in our constitutional democracy. [2] It is not disputed that a court may appoint a lawyer as “amicus curiae”, a “friend of the court”, to assist the court inexceptional circumstances; or that the Attorney General is obligated to pay amici curiae when appointed.

What is at issue is whether acourt’s inherent or implied jurisdiction extends to fixing the rates of compensation for amici curiae. [3] In the four matters under appeal, which all arose in the context of criminal proceedings in Ontario, trial judgesappointed amici curiae, set higher rates of compensation than those offered by the Attorney General of Ontario and ordered the AttorneyGeneral to pay. The Attorney General took the position that, in these cases, the amici played a role similar to that of defence counsel andshould accept legal aid rates.

The Court of Appeal concluded that provincial and superior courts have the jurisdiction to fix the rates ofcompensation. The Attorney General appeals that decision, although it does not seek the return of any monies paid. [4] My colleague Fish J. concludes that the jurisdiction to fix the fees of amici curiae is necessarily incidental to acourt’s power to appoint them. He finds no constitutional impediment to this power. [5] Respectfully, I disagree.

Absent statutory authority or a challenge on constitutional grounds, courts do not have theinstitutional jurisdiction to interfere with the allocation of public funds. While the jurisdiction to control court processes and function asa court of law gives courts the power to appoint amici curiae, it does not, in itself, provide the power to determine what the AttorneyGeneral must pay them.

The scope of a superior court’s inherent power, or of powers possessed by statutory courts by necessaryimplication, must respect the constitutional roles and institutional capacities of the legislature, the executive and the judiciary. As theChief Law Officers of the Crown, responsible for the administration of justice on behalf of the provinces, the Attorneys General of theprovinces, and not the courts, determine the appropriate rate of compensation for amici curiae. [6] For the reasons that follow, I would allow the appeal. II.

Background [7] These cases were not decided under the Canadian Charter of Rights and Freedoms. They did not proceed on thebasis that the accused could not have fair trials without the assistance of counsel. Instead, the trial judges appointed counsel to assist theaccused, who had in each case discharged counsel of their choice. The judges did so in order to maintain the orderly conduct of the trialsor to avoid delay in these complex, lengthy proceedings.

However, in each of these cases, the role of the amici closely mirrored the roleof defence counsel, except that they could not be dismissed by the accused. [8] In R. v. Imona Russel, 2009 CarswellOnt 9725 (S.C.J.) (“Imona Russel #1”), an amicus was appointed, at therequest of the Crown, “to ensure the orderly conduct of the trial” (para. 6). The accused had discharged several experienced legal aidcounsel and the court had twice refused the accused’s request for an order under s. 24(1) of the Charter providing state-funded counselin order to ensure a fair trial.

The role of amicus was initially expanded so that he would “defend the case as if he had a client who waschoosing to remain mute” (para. 13). Subsequently, at the request of the accused, the trial judge told the amicus to take instructions fromand act on behalf of the accused as he would in a traditional solicitor-client relationship — except he could not be discharged orwithdraw due to a breakdown in the relationship with the accused.

Later, after the amicus applied for permission to withdraw from thecase, the trial judge appointed a senior criminal lawyer to set a budget for the amicus and to review, monitor and assess his accounts onan ongoing basis (R. v. Imona Russel, 2010 CarswellOnt 10747 (S.C.J.) (“Imona Russel #2”)). [9] In R. v. Whalen, Sept. 18, 2009, No. 2178/1542 (Ont. Ct. J.), a dangerous offender application, the respondent wasunrepresented and had a history of discharging lawyers. He had difficulty finding legal aid counsel, due to a boycott of legal aid casesby many members of Ontario’s criminal defence bar.

The judge appointed an amicus to “stabilize the litigation process” (A.R., at p.26). Although the Attorney General had found other counsel who were available to act at legal aid rates, the respondent had developed arelationship of confidence with a particular lawyer who would not accept the legal aid rate. An amicus was appointed to establish asolicitor-client relationship with the respondent, with the ability to override the respondent’s instructions in his best interest. [10] In R. v.

Greenspon, (ON SC), 2009 CarswellOnt 7359 (S.C.J.), a former counsel, who had beendischarged by one of six co-accused, was appointed as amicus. This was done to avoid delay, in the event that the accused could not find

counsel ready to act in time. Ultimately, the accused found counsel who was able to proceed without delay and the amicus was notrequired. [11] In each of these cases, the amicus refused to accept the legal aid rate offered by the Attorney General. The trialjudge fixed a rate that exceeded the tariff, ordering the Attorney General to pay. The Attorney General appealed all four decisions. III.

Decision of the Court of Appeal, 2011 ONCA 303, 104 O.R. (3d) 721 [12] The Court of Appeal considered the four appeals together and affirmed the decisions, as it was of the view thatsuperior and statutory courts have the jurisdiction to appoint amici even where s. 24(1) of the Charter does not apply and there is nostatutory provision for such an appointment. The capacity of a superior court to appoint an amicus stems from the court’s inherentjurisdiction to act where necessary to ensure that justice can be done.

For a statutory court, the capacity stems from the court’s power tomanage its own process and operate as a court of law, and arises in situations where the court must be able to appoint an amicus in orderto exercise its statutory jurisdiction. [13] The Court of Appeal concluded that in order to ensure that serious criminal cases can proceed where difficulty iscaused by an unrepresented accused, judges must have the ability to secure the assistance of an amicus.

To the extent that the ability tofix rates of compensation for amici is linked to the capacity to appoint them, it should not be left in the hands of the Attorney General. The court concluded that this authority did not raise any institutional issues or social, economic or political policy concerns. IV.

Analysis [14] My colleague Fish J. provides three reasons for finding the power to set the rate of compensation to be incidental to asuperior court’s inherent jurisdiction and a statutory court’s power to control its own processes: (1) the inability to set rates ofcompensation would unduly weaken the court’s appointment power and ability to name the amicus of its choice (para. 123); (2) theintegrity of the judicial process would be imperilled and should not be dependent upon the Crown (para. 124); and (3) unilateral controlby the Attorney General over remuneration might create an apprehension of bias and place an amicus in a conflict of interest (para. 125).

He concludes that there is no constitutional impediment to vesting such a power in trial judges. [15] I take a different view. The jurisdiction to appoint an amicus does not necessarily imply or require the authority toset a specific rate of compensation. The ability to order the government to make payments out of public funds must be grounded in lawand a court’s inherent or implied jurisdiction is limited by the separate roles established by our constitutional structure.

Absent authorityflowing from a constitutional challenge or a statutory provision, exercising such power would not respect the institutional roles andcapacities of the legislature, the executive (including the Attorney General), and the judiciary, or the principle that the legislature and theexecutive are accountable to the public for the spending of public funds. [16] I propose to explain my conclusion by first addressing the constitutional framework that surrounds the exercise of asuperior court’s inherent jurisdiction.

This framework also applies to the exercise of the jurisdiction implied by the ability of statutorycourts to function as courts of law. Second, I will apply that constitutional framework to the particular context of amicus appointments. A. The Constitutional Framework

(1) The Inherent Jurisdiction of Superior Courts [17] Canada’s provincial superior courts are the descendants of the Royal Courts of Justice and inherited the powers andjurisdiction exercised by superior, district or county courts at the time of Confederation (Attorney General of Canada v. Law Society ofBritish Columbia, (SCC), [1982] 2 S.C.R. 307, at pp. 326-27, per Estey J.).

As such, superior courts play a central rolein maintaining the rule of law, uniformity in our judicial system and the constitutional balance in our country. [18] The essential nature and powers of the superior courts are constitutionally protected by s. 96 of the Constitution Act,1867. Accordingly, the “core or inherent jurisdiction which is integral to their operations . . . cannot be removed from the superior courtsby either level of government, without amending the Constitution” (MacMillan Bloedel Ltd. v. Simpson, (SCC), [1995] 4S.C.R. 725, at para. 15).

The rationale for s. 96 has evolved to ensure “the maintenance of the rule of law through the protection of thejudicial role” (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3S.C.R. 3 (“Provincial Judges Reference”), at para. 88). [19] In MacMillan Bloedel, a majority of this Court described the powers at the core of a superior court’s jurisdiction ascomprising “those powers which are essential to the administration of justice and the maintenance of the rule of law” (para. 38), whichdefine the court’s “essential character” or “immanent attribute” (para. 30).

The core is “a very narrow one which includes only criticallyimportant jurisdictions which are essential to the existence of a superior court of inherent jurisdiction and to the preservation of itsfoundational role within our legal system” (Reference re Amendments to the Residential Tenancies Act (N.S.), (SCC),[1996] 1 S.C.R. 186, at para. 56, per Lamer C.J.). [20] In his 1970 article, “The Inherent Jurisdiction of the Court”, 23 Curr. Legal Probs. 23, which has been cited by thisCourt on eight separate occasions,[1] I. H.

Jacob provided the following definition of inherent jurisdiction: . . . the inherent jurisdiction of the court may be defined as being the reserve or fund of powers, a residual source ofpowers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance

of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial betweenthem. [p. 51] [21] As noted by this Court in R. v.

Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 24: These powers are derived “not from any statute or rule of law, but from the very nature of the court as a superior court of law” (Jacob, atp. 27) to enable “the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular,orderly and effective manner” (p. 28). [22] In spite of its amorphous nature, providing the foundation for powers as diverse as contempt of court, the stay ofproceedings and judicial review, the doctrine of inherent jurisdiction does not operate without limits.[2] [23] It has long been settled that the way in which superior courts exercise their powers may be structured by Parliamentand the legislatures (see MacMillan Bloedel, at para. 78, per McLachlin J., dissenting on other grounds).

As Jacob notes (at p. 24): “. . .the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as itcan do so without contravening any statutory provision” (emphasis added) (see also Caron, at para. 32). [24] Further, even where there are no legislative limits, the inherent jurisdiction of the court is limited by the institutionalroles and capacities that emerge out of our constitutional framework and values (see Provincial Judges Reference, at para. 108). [25] These limits were recognized in a thoughtful thesis on inherent jurisdiction written by Jonathan Desjardins Mallette: [translation] As for the unwritten [constitutional] structural principles, they are particularly relevant to determining the limits of theexercise of the inherent jurisdiction of the courts.

They require the courts to take into account the structure of our Constitution, whichincludes other fundamental principles, such as the rule of law and parliamentary supremacy. (La constitutionnalisation de la juridiction inhérente au Canada: origines et fondements, unpublished LL.M. thesis, Université deMontréal (2007), reproduced in the Attorney General of Quebec’s book of authorities, vol.

II, at p. 375.) [26] With the advent of the Charter, the superior courts’ inherent jurisdiction must also support their independence insafeguarding the values and principles the Charter has entrenched in our constitutional order. Thus, the inherent jurisdiction of superiorcourts provides powers that are essential to the administration of justice and the maintenance of the rule of law and the Constitution.

Itincludes those residual powers required to permit the courts to fulfill the judicial function of administering justice according to law in aregular, orderly and effective manner — subject to any statutory provisions. I would add, however, that the powers recognized as part ofthe courts’ inherent jurisdiction are limited by the separation of powers that exists among the various players in our constitutional orderand by the particular institutional capacities that have evolved from that separation.

(2) Separation of Powers [27] This Court has long recognized that our constitutional framework prescribes different roles for the executive,legislative and judicial branches (see Fraser v. Public Service Staff Relations Board, (SCC), [1985] 2 S.C.R. 455, at pp.469-70).

The content of these various constitutional roles has been shaped by the history and evolution of our constitutional order (seeReference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, at paras. 49-52). [28] Over several centuries of transformation and conflict, the English system evolved from one in which power wascentralized in the Crown to one in which the powers of the state were exercised by way of distinct organs with separate functions.

Thedevelopment of separate executive, legislative and judicial functions has allowed for the evolution of certain core competencies in thevarious institutions vested with these functions. The legislative branch makes policy choices, adopts laws and holds the purse strings ofgovernment, as only it can authorize the spending of public funds. The executive implements and administers those policy choices andlaws with the assistance of a professional public service.

The judiciary maintains the rule of law, by interpreting and applying these lawsthrough the independent and impartial adjudication of references and disputes, and protects the fundamental liberties and freedomsguaranteed under the Charter. [29] All three branches have distinct institutional capacities and play critical and complementary roles in ourconstitutional democracy. However, each branch will be unable to fulfill its role if it is unduly interfered with by the others. In NewBrunswick Broadcasting Co. v.

Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319,McLachlin J. affirmed the importance of respecting the separate roles and institutional capacities of Canada’s branches of governmentfor our constitutional order, holding that “[i]t is fundamental to the working of government as a whole that all these parts play theirproper role.

It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphereof activity of the other” (p. 389).[3] [30] Accordingly, the limits of the court’s inherent jurisdiction must be responsive to the proper function of the separatebranches of government, lest it upset the balance of roles, responsibilities and capacities that has evolved in our system of governanceover the course of centuries. [31] Indeed, even where courts have the jurisdiction to address matters that fall within the constitutional role of the otherbranches of government, they must give sufficient weight to the constitutional responsibilities of the legislative and executive branches,as in certain cases the other branch will be “better placed to make such decisions within a range of constitutional options” (Canada(Prime Minister) v.

Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 37).

(3) The Administration of Justice in the Provinces

[32] The framers of our Constitution established a delicate balance between the federal and provincial governments,anchored by s. 96 courts, whose independence and core jurisdiction and powers provide a unified, national judicial presence (see ReResidential Tenancies Act, 1979, (SCC), [1981] 1 S.C.R. 714, at p. 728).

While the federal government is responsiblefor the appointment of s. 96 judges, the Constitution has charged the provinces with the responsibility for the administration of justice inthe provinces (Constitution Act, 1867, s. 92(14)). [33] Pursuant to this power, the provincial legislatures enact laws and adopt regulations pertaining to courts, rules ofcourt and civil procedure, or delegate this function to another body. They also pass laws to provide the infrastructure and staff necessaryto operate the courts and establish schemes to provide legal representation to persons involved in court proceedings.

The provinciallegislature votes the funds necessary to operate the justice system within the province, and the executive, mainly through the office ofthe Attorney General, is charged with the responsibility of administering these funds and, more broadly, the administration of justiceitself. As Dickson J. stated in Di Iorio v. Warden of the Montreal Jail, (SCC), [1978] 1 S.C.R. 152, at p. 200: “SinceConfederation, the provincial departments of the Attorney General have in practice ‘administered justice’ in the broadest sense, at greatexpense to the taxpayers . . . .”

(4) Role of the Attorney General in the Administration of Justice on Behalf of the Province [34] The first reference to the “attornatus regis” — the King’s Attorney — dates back to the 13th century (J. L. J.Edwards, The Law Officers of the Crown (1964), at p. 16). The role of Attorney General was carried into Canada in the 18th century,with the first Attorney General of Upper Canada being appointed in 1791 (P. Romney, Mr Attorney: The Attorney General for Ontario inCourt, Cabinet, and Legislature 1791-1899 (1986), at pp. 6-7).

The role was continued by the Constitution Act, 1867, as s. 63 explicitlymentions the Attorney General as one of the officers of the Executive Council of Ontario. [35] The Attorney General of Ontario, on behalf of the executive, acts pursuant to the province’s responsibility under s.92(14) of the Constitution Act, 1867 for the administration of justice. As Chief Law Officer of the Crown, the Attorney General hasspecial responsibilities to uphold the administration of justice (see, for example, Ministry of the Attorney General Act, R.S.O. 1990, c.M.17, s. 5).

Idington J. noted in In re Criminal Code (1910), (SCC), 43 S.C.R. 434, at p. 443, that “custom, traditionand constitutional usage, hav[e] charged [the Attorney General] with the administration of justice within the province as his primaryduty”. [36] The Attorney General remunerates various participants in the criminal justice system — including provincial Crowncounsel, court reporters, interpreters, registrars and law clerks. The Attorney discharges his obligation to provide counsel for indigentaccused through the establishment of legal aid programs (see R. v. Peterman (2004), (ON CA), 70 O.R. (3d) 481(C.A.)).

Defence counsel appointed under s. 24(1) of the Charter (see, for instance, R. v. Rowbotham (1988), (ONCA), 41 C.C.C. (3d) 1 (Ont. C.A.)) are funded directly by the Attorney General. This does not create an apprehension of bias or aconflict of interest. Instead, this role is consistent with the Attorney’s responsibilities and public accountability. Indeed, even provincialcourt judges are paid by the provincial Attorneys General and are still seen as independent (see Provincial Judges Reference). [37] The Attorney General is not an ordinary party.

This special character manifests itself in the role of Crown attorneys,who, as agents of the Attorney General, have broader responsibilities to the court and to the accused, as local ministers of justice (seeBoucher v. The Queen, (SCC), [1955] S.C.R. 16, at pp. 23-24, per Rand J.; Nelles v. Ontario, (SCC),[1989] 2 S.C.R. 170, at pp. 191-92, per Lamer J.).

(5) Limitations on the Courts’ Inherent Jurisdiction in the Context of the Administration of Justice [38] It is vital that each branch of government respect its proper institutional role and capacity in the administration ofjustice, in accordance with the Constitution and public accountability. [39]

Section 96 judges possess inherent power to make orders necessary to protect the judicial process and the rule oflaw. The courts must of course safeguard their own constitutional independence to assure the fairness of the judicial process and toprotect the rights and freedoms of Canadians that are entrusted to them under the Charter.

As the Canadian Judicial Council noted in its2006 report, “[i]t is crucial to bear in mind that inherent powers, by definition, inhere in courts and their jurisdiction and so cannot beanalysed independently of the role the judiciary is expected to play in the constitutional structure” (Alternative Models of CourtAdministration (2006) (online), at p. 46).

As such, these powers are exercised within the framework for the administration of justice thatthe province has established. [40] As the Court made clear in the Provincial Judges Reference, judicial independence includes a core administrativecomponent, which extends to administrative decisions that bear “directly and immediately on the exercise of the judicial function” (para.117). These were listed in Valente v.

The Queen, (SCC), [1985] 2 S.C.R. 673, at p. 709, as including: . . . assignment of judges, sittings of the court, and court lists — as well as the related matters of allocation of court rooms and directionof the administrative staff engaged in carrying out these functions . . . .

As this Court went on to hold in Valente, at pp. 711-12, while greater administrative autonomy or independence may be desirable, it isnot essential to judicial independence (see also Provincial Judges Reference, at para. 253). [41] The proper constitutional role of s. 96 courts does not permit judges to use their inherent jurisdiction to enter the fieldof political matters such as the allocation of public funds, absent a Charter challenge or concern for judicial independence. For thisreason, it is generally accepted that courts of inherent jurisdiction do not have the power to appoint court personnel.

Staffing the courtsis the responsibility of the provincial government. [42] Of course, a complaint that inadequate funding risks undermining the justice system may be subject to courtoversight, whether by way of a Charter application or a challenge based on the constitutional principle of judicial independence, as wasthe case in the Provincial Judges Reference, where the closure of the Manitoba courts by withdrawing court staff on a series of Fridays,

as a part of a wider deficit-reduction effort, was found unconstitutional (paras. 269-76). [43] However, the allocation of resources between competing priorities remains a policy and economic question; it is apolitical decision and the legislature and the executive are accountable to the people for it. B. Amici Curiae and the Inherent Jurisdiction of the Court

(1) Appointing Amici [44] While courts of inherent jurisdiction have no power to appoint the women and men who staff the courts and assistjudges in discharging their work, there is ample authority for judges appointing amici curiae where this is necessary to permit aparticular proceeding to be successfully and justly adjudicated. [45] Amici curiae have long played a role in our system of justice. As early as the mid-14th century, the common lawcourts from which our superior courts are descended received the assistance of amici (see S. C.

Mohan, “The Amicus Curiae: Friends NoMore?”, [2010] S.J.L.S. 352, at pp. 356-60). Indeed, as one scholar has noted, “[t]here can be no doubt as to the age and wide acceptanceof the amicus curiae. As to its origin, on the other hand, there is a great deal of doubt. Like so many things of great age, its roots are losteven though the practice still continues” (F. M. Covey, Jr., “Amicus Curiae: Friend of the Court” (1959), 9 DePaul L. Rev. 30, at p. 33).

A number of cases have recognized the practice; in addition, there are statutory provisions that provide for the appointment of an amicusin certain circumstances.[4] [46] A court’s inherent jurisdiction to appoint an amicus in criminal trials is grounded in its authority to control its ownprocess and function as a court of law. Much like the jurisdiction to exercise control over counsel when necessary to protect the court’sprocess that was recognized in R. v.

Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 18, the ability to appoint amici is linked tothe court’s authority to “request its officers, particularly the lawyers to whom the court afforded exclusive rights of audience, to assist itsdeliberations” (B. M. Dickens, “A Canadian Development: Non-Party Intervention” (1977), 40 Mod. L. Rev. 666, at p. 671). [47] Thus, orders for the appointment of amici do not cross the prohibited line into the province’s responsibility for theadministration of justice, provided certain conditions are met.

First, the assistance of amici must be essential to the judge discharging herjudicial functions in the case at hand. Second, as my colleague Fish J. observes, much as is the case for other elements of inherentjurisdiction, the authority to appoint amici should be used sparingly and with caution, in response to specific and exceptionalcircumstances (para. 115).

Routine appointment of amici because the defendant is without a lawyer would risk crossing the line betweenmeeting the judge’s need for assistance and the province’s role in the administration of justice.[5] [48] So long as these conditions are respected, the appointment of amici avoids the concern that it improperly trenches onthe province’s role in the administration of justice.

(2) Amici as Defence Counsel [49] Further, I agree with my colleague Fish J. that “[o]nce clothed with all the duties and responsibilities of defencecounsel, the amicus can no longer properly be called a ‘friend of the court’” (para. 114). Amici and court-appointed defence counsel playfundamentally different roles (see D.

Berg, “The Limits of Friendship: the Amicus Curiae in Criminal Trial Courts” (2012), 59 Crim.L.Q. 67, at pp. 72-74). [50] The issue of whether it was appropriate to appoint amici to effectively act as defence counsel was raised by theAttorney General of Quebec and the Attorney General of British Columbia, who were interveners in this Court. It was not challenged bythe Attorney General of Ontario.

However, to the extent that the terms for the appointment of amici mirror the responsibilities ofdefence counsel, they blur the lines between those two roles, and are fraught with complexity and bristle with danger. [51] First, the appointment of amici for such a purpose may conflict with the accused’s constitutional right to representhimself (see R. v. Swain, (SCC), [1991] 1 S.C.R. 933, at p. 972). [52] Second, it can also defeat the judicial decision to refuse to grant state-funded counsel following an applicationinvoking the accused’s fair trial rights under the Charter.

For instance, by expanding the role of the amicus, first to act as though he wasdefending a client who remained mute, and later to take instructions from the accused, the trial judge in Imona Russel undermined thecourt’s earlier decisions to deny state-funded defence counsel. [53] Third, there is an inherent tension between the duties of an amicus who is asked to represent the interests of theaccused, especially where counsel is taking instructions, as in Imona Russel and Whalen, and the separate obligations of the amicus tothe court.

This creates a potential conflict if the amicus’ obligations to the court require legal submissions that are not favourable to theaccused or are contrary to the accused’s wishes. Further, the privilege that would be afforded to communications between the accusedand the amicus is muddied when the amicus’ client is in fact the trial judge. [54] Thus, it seems to me that this current practice of appointing amici as defence counsel blurs the traditional roles of thetrial judge, the Crown Attorney as a local minister of justice and counsel for the defence.

Further, the use of amici to assist a trial judgein fulfilling her duty to assist an unrepresented accused might result in a trial judge doing something indirectly that she cannot dodirectly. While trial judges are obliged to assist unrepresented litigants, they are not permitted to give them strategic advice. Where anamicus is assigned and is instructed to take on a solicitor-client role, as in Imona Russel and Whalen, the court’s lawyer takes on a rolethat the court is precluded from taking. [55] Finally, there is a risk that appointing amici with an expanded role will undermine the provincial legal aid scheme.

In this case, the Ontario legislature had passed the Legal Aid Services Act, 1998, S.O. 1998, c. 26, which provides for the representationof indigent accused. The inherent or implied jurisdiction of a court cannot be exercised in a way that would circumvent or underminethose laws. Absent a constitutional challenge, the judicial exercise of inherent or implied jurisdiction must operate within the framework

of duly enacted legislation and regulations. [56] For all these reasons, I conclude that a lawyer appointed as amicus who takes on the role of defence counsel is nolonger a friend of the court.

(3) Compensating Amici (

a) The Auckland Harbour Principle [57] I agree with my colleague Fish J. that the principle stated by the Privy Council in Auckland Harbour Board v. TheKing, [1924] A.C. 318, that “no money can be taken out of the consolidated Fund into which the revenues of the State have been paid,excepting under a distinct authorization from Parliament itself” (p. 326), does not resolve the issue before us. [58] However, the Auckland Harbour principle highlights the limits of the court’s role in the administration of justice, arole that is based on history, convention, competence and capacity.

As already noted, the government of the day bears the responsibilityfor weighing public priorities and then allocating the resources and designing the programs required to act on its policy choices. [59] Obviously, court decisions can have ancillary financial consequences. Moving to larger venues for jury selectionsinvolving a number of panels, or continuing a sitting of the court late into the day, incurring overtime expenses for court staff, implicategreater costs for the public purse. Yet, they are legitimate exercises of a court’s inherent jurisdiction to control its own process.

In muchthe same way, an order appointing an amicus does not take on the character of an appropriation, but rather is one of the countlessdecisions that may be taken by a court that will have incidental consequences for the public purse. [60] However, an order that the Attorney General must provide compensation at a particular rate goes beyond an orderwith ancillary financial consequences, and becomes an order directing the Attorney General to pay specific monies out of public funds.

Such orders must be grounded in law. [61] If not derived from a Charter challenge or authorized by specific statutory authority, the jurisdiction to fix thecompensation of amici must be found within a court’s inherent or implied jurisdiction. (

b) Does the Courts’ Inherent or Implied Jurisdiction Extend to Setting Rates of Compensation for Amici and Orderingthe Province to Pay? [62] The question is whether a judge, acting properly in the exercise of her inherent or implied jurisdiction, can fix therate of payment of an amicus curiae and order the province to pay the amicus out of public funds. [63] The Court of Appeal’s approach rests on the premise that the inherent or implied power to appoint an amicus wouldbe meaningless unless the court has the authority to ensure that rates of compensation will be adequate to retain the amicus of its choice.

The submission is that it will sometimes be necessary for the court to name a specific person as amicus in order to manage or salvage ahigh-risk trial. Without the power to fix a rate of compensation, it is argued that the court’s ability to ensure the effective conduct of atrial is weakened and the judicial process imperilled. [64] I agree that the courts have the jurisdiction to set terms to give effect to their authority to appoint amici.

However, Ido not accept the premise that the court’s ability to fix rates of compensation for an amicus is essential to the power to appoint amici, orthat its absence imperils the judiciary’s ability to administer justice according to law in a regular, orderly and effective manner. To thecontrary, the spectre of trial judges fixing and managing the fees of amici imperils the integrity of the judicial process. (

i) Necessity [65] Historically, courts have effectively appointed amici without the need to fix the rate of compensation. There is nodispute that a court has the ability to specify the general qualifications required for the task at hand.

The Attorney General has theobligation to pay what is constitutionally adequate to serve the needs of the courts. [66] As well, the experience with Rowbotham orders over the last two and a half decades has confirmed an attitude ofrestraint, as, even in those Charter cases, courts have not considered it necessary to direct the rates to be paid to state-funded lawyersappointed to represent the accused. A number of appellate courts have considered the issue and found it unnecessary to direct the rate ofcompensation (see R. v. Chan, 2002 ABCA 299, 317 A.R. 240 (sub nom. R. v. Cai), at para. 9; R. v.

Ho, 2003 BCCA 663, 190 B.C.A.C.187, at para. 73; Peterman, at para. 30). This is in line with the approach outlined by this Court in New Brunswick (Minister of Healthand Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46, at para. 104, where a rate of remuneration for state-funded counsel was not specified. [67] However, this is not to say that an order fixing rates of remuneration under the Charter is precluded, as s. 24(1)“should be allowed to evolve to meet the challenges and circumstances of [the case]” (Doucet-Boudreau v.

Nova Scotia (Minister ofEducation), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 59). It remains open to a court of competent jurisdiction to award such a remedywhere a Charter right is at stake and it is appropriate and just to do so. [68] Furthermore, this is not a case like R. v. White, 2010 SCC 59, [2010] 3 S.C.R. 374, where s. 694.1(3) of the CriminalCode, R.S.C. 1985, c.

C-46, provided statutory authority for the Registrar of this Court to fix the fair and reasonable fees anddisbursements of counsel appointed by the Court pursuant to s. 694.1(1), where counsel and the Attorney General could not agree, orOntario v.

Figueroa (2003), (ON CA), 64 O.R. (3d) 321 (C.A.), where the Attorney General in effect delegated tothe court the task of finding an independent prosecutor for contempt proceedings that had been brought against Crown officials in orderto avoid the appearance of a conflict of interest (para. 18); counsel for the Attorney General conceded that the court had jurisdiction tofix compensation (para. 13).

Apart from these two cases and the cases at bar, I have not been directed to, nor have I been able to find,any appellate decision which has concluded that it was necessary to fix the rates of remuneration for state-funded counsel.

(ii) Limitations Imposed by Our Constitutional Order [69] As I have explained, permitting judges to set rates and to order payment without authority based on a statute orderived from a constitutional challenge takes the judge out of the proper judicial role. A court’s inherent or implied jurisdiction cannotsurpass what the Constitution permits. As we have seen, the inherent jurisdiction of the court must respect the constitutional frameworkand the allocation of responsibility this framework makes.

It is for the duly elected members of the legislature to determine what fundsare expended on the administration of justice, not the judges. [70] In cases where the lawyer contemplated by the court opts not to accept the compensation offered by the AttorneyGeneral, the court does not, in my view, have the ability to specify a rate of remuneration in order to secure the amicus of its choice. Theinability to have the amicus of its choice does not deprive the court of its nature as a court of law.

Even the accused, whose right to a fairtrial is at stake, is not entitled to be provided with state-funded counsel of choice, provided he or she receives legal representation thatgives a fair opportunity to make full answer and defence (see R. v. Rockwood (1989), (NS CA), 91 N.S.R. (2d) 305(S.C. (App. Div.)), at paras. 15-20; Chan, at para. 18; Child and Family Services of Winnipeg v. J. A., 2003 MBCA 154, 180 Man. R.(2d) 161, at para. 45; Peterman, at paras 26-28; R. v. Ryan, 2005 NLCA 44, 199 C.C.C. (3d) 161, at paras. 7-8; R. v.

Gagnon, 2006YKCA 12, 230 B.C.A.C. 200, at paras. 9-11). [71] In Ontario, the Attorney General typically finds a number of appropriate lawyers willing to act as amicus for theconsideration of the trial judge. Such a process respects the institutional and complementary constitutional roles of the courts, theAttorney General on behalf of the executive, and the legislature. [72] The appointment of amici cannot be permitted to devolve into a routine way of getting complex trials completed.

Fundamentally, providing judges with the assistance required to complete criminal trials in a fair and timely way is a matter concerningthe administration of justice. As such, it is the responsibility of the province. Ultimately, it is the province’s duty to find solutions torecurring problems such as those that arose in the cases before us.

To routinely ask judges to resolve these problems by extraordinaryorders taxes the inherent jurisdiction of the court with more than it can properly be made to bear. [73] For example, if the increasing demands on trial judges are best met by the appointment of amici to assist, but not actfor, the unrepresented accused, the province may create a roster of available and qualified counsel who are prepared to act at the rateoffered by the Attorney General. The province may create a mechanism for the monitoring and oversight of those funds, or look to astaffed office to fulfill the role.

It may be that the province chooses to enhance the legal aid plan or to establish a separate regime toaddress the different roles of amici.[6] It can choose to respond to public policy problems in a way that does not undermine otherprograms and priorities, including the legal aid program. What is more, the government is accountable to the public for such choices. [74] Of course, it remains the case that a failure to provide the appropriate support may compromise the judicial processin a specific case.

For instance, in a criminal case, the absence of a qualified court reporter or interpreter may mean that the court cannotproceed with the trial. However, a trial judge cannot use her inherent jurisdiction to insist that the Attorney General pay the higher ratesrequired to attract a particular court reporter or interpreter.

Sometimes a trial cannot proceed, and must be rescheduled, despite the trialjudge’s or the Crown’s best efforts. [75] In those exceptional cases where Charter rights are not at stake but the judge must have help to do justice andappoints an amicus, the person appointed and the Attorney General should meet to set rates and mode of payment.

The judge may beconsulted, but should not make orders regarding payment that the Attorney General would have no choice but to obey. [76] In the final analysis, if the assistance of an amicus is truly essential and the matter cannot be amicably resolvedbetween the amicus and the Attorney General, the judge’s only recourse may be to exercise her inherent jurisdiction to impose a stayuntil the amicus can be found. If the trial cannot proceed, the court can give reasons for the stay, so that the responsibility for the delayis clear. (

c) The Integrity of the Judicial Process Would Be Imperilled [77] Finally, recognizing that courts have the inherent or implied power to set rates of compensation creates a very realrisk of compromising the judicial role. The respondent Criminal Lawyers’ Association of Ontario says that courts use their inherentjurisdiction to set rates of remuneration for amici infrequently and for small amounts, such that the sums involved are modest and do notengage social, economic or political policy.

However, the practical result is that, in Ontario, 242 superior court judges would have theability to instruct the Attorney General in the expenditure of funds on the administration of justice, in a piecemeal and inconsistentfashion.

As noted above, such orders would potentially undermine the province’s legal aid system. [78] Decisions regarding rates of compensation for amici would put judges into the fray, requiring them to determine fairrates of compensation; to monitor the compensation claimed; or, as happened in Imona Russel #2, to appoint further counsel to monitorthe fees and the time claimed, at a further fixed fee. [79] Given the cost of lengthy trials, compensation orders for lawyers in a long, complex criminal trial can represent theexpenditure of hundreds of thousands of dollars of public funds, reviewable only by an appellate court.

There is a real risk that such adisregard of the separation of powers and the constitutional role and institutional capacity of the different branches of government couldundermine the legal aid system and cause a lack of public confidence in judges and the courts. Indeed, as the High Court of Australiafound in Grollo v. Palmer (1995), 184 C.L.R. 348, at p. 365, courts may not exercise non-judicial functions that would diminish publicconfidence in the integrity of the judiciary as an institution. V. Conclusion [80] In

summary, the ability to fix rates of compensation is not necessary for the court to make its power to appoint amicicuriae effective, and the judicial process will not be weakened or imperilled if compensation cannot be ordered. Indeed, even followinga 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. [ 81 ] 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. [ 82 ] 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. [ 83 ] 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. [ 84 ] For the reasons stated above, 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. [ 85 ] Accordingly, I would allow the appeal. In light of the public importance of the issues engaged by this appeal, the parties will bear their own costs.

The reasons of LeBel, Fish, Abella and Cromwell JJ. were delivered by Fish J. (dissenting) — I [ 86 ] An amicus curiae is a friend of a court in need ― and the friend of that court indeed. [ 87 ] Accordingly, courts may appoint an amicus only when they require his or her assistance to ensure the orderly conduct of proceedings and the availability of relevant submissions.

And once appointed, the amicus is bound by a duty of loyalty and integrity to the court and not to any of the parties to the proceedings. [ 88 ] It is uncontested in this case that trial judges have jurisdiction to appoint an amicus curiae and to determine the role of the amicus in the proceedings before them.

It is uncontested as well that the Attorney General who has conduct of the prosecution ― in this case the Attorney General of Ontario ― is then obliged to remunerate the amicus appropriately: A.F., at para. 3. [ 89 ] The only question on this appeal is whether trial judges can themselves fix the fees to be paid to the amicus . The appellant would answer that question in the negative; the respondents in the affirmative. [ 90 ] I agree with the respondents. In my view the jurisdiction to fix the fees of amici curiae is necessarily incidental to the power of trial judges to appoint them.

There is no constitutional impediment to vesting in trial judges the authority to do so when necessary in the circumstances. [ 91 ] As I explain below, once 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. II [ 92 ] This appeal concerns four distinct judgments, rendered in three cases and joined both in the Court of Appeal and in this Court for hearing and decision. [ 93 ] In each instance, the trial judge appointed an amicus curiae and set the terms and conditions of the amicus ’s compensation.

The judge then ordered the Crown to remunerate the amicus at the rate and upon the conditions fixed by the court. [ 94 ] Two of the judgments before us relate to the trial of William Imona Russel. After Mr. Imona Russel had discharged several experienced lawyers whom he had retained under legal aid certificates, the Crown ― not the accused ― requested that the trial judge appoint an amicus . The appointment of an amicus , the Crown contended, would serve the interests of justice by ensuring the orderly conduct of the trial in the event that Mr.

Imona Russel persisted in his serial discharge of defence counsel. [ 95 ] An amicus curiae was appointed on June 17, 2008. The order set out the duties of the amicus as follows: To familiarize himself with this brief. If the accused discharges his lawyer or if the Court so orders, to advise the accused about points of law and legal issues; to discuss legal issues with the Crown on behalf of the accused; to speak to the court on behalf of the accused in relation to legal issues.

(R. v. Imona Russel, 2009 CarswellOnt 9725 (S.C.J.) (“Imona Russel #1”), at para. 7) The order also stated that the amicus would be paid at the legal aid rate and that Legal Aid Ontario would manage the funding. [96] After Mr. Imona Russel again dismissed his lawyer, Legal Aid refused to fund any new defence counsel. Mr. ImonaRussel then brought an application for an order requiring the Attorney General to fund counsel as a remedy under s. 24(1) of theCanadian Charter of Rights and Freedoms for an infringement of his right to a fair trial (more commonly known as a “Rowbothamorder”: see R. v.

Rowbotham (1988), (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.)). This application was denied andappeals against that decision were dismissed. [97] The trial judge felt bound in these circumstances to expand the role of the amicus previously appointed, despite Mr.Imona Russel’s protests and his refusal to cooperate with the amicus. The amicus was instructed to cross-examine witnesses, makeobjections to inadmissible evidence and raise legal arguments on behalf of Mr. Imona Russel.

Effectively, as the trial judge noted, hewas told “to defend the case as if he had a client who was choosing to remain mute”: Imona Russel #1, at para. 13. [98] Two months later, Mr. Imona Russel reversed his position and requested a further expansion of the role of theamicus. Subject to a minor disagreement as to privilege of the communications between the amicus and the accused, this expansion wassupported by the Crown. In the result, the trial judge ordered the amicus to take instructions from and act on behalf of Mr.

ImonaRussel as he would in a traditional solicitor-client relationship, subject to two notable exceptions: Mr. Imona Russel could not dischargethe amicus and the amicus could not withdraw his services due solely to a breakdown in the relationship with the accused. [99] Following this significant expansion of his duties and obligations, the amicus sought a variation of his order ofappointment. The trial judge agreed to increase the amicus’s rate of remuneration to $192 per hour.

This, she noted, was “the rate thatwould be paid [by the Attorney General] to a lawyer of [the amicus’s] year of call to prosecute or to represent the interests of a witness ina criminal case”: Imona Russel #1, at para. 49. [100] Several months later, being of the opinion that the budget of hours authorized by Legal Aid Ontario was not sufficientto permit him to adequately represent Mr. Imona Russel, the amicus curiae requested the appointment of an independent assessor toreview Legal Aid’s decision and to recommend a budget. Legal Aid initially agreed but later revised its position.

The amicus thenapplied to the court for permission to withdraw. [101] The trial judge held that the amicus’s request for an independent third party assessor was entirely reasonable. Sheordered that a senior criminal lawyer be appointed to set a budget and to review, monitor and assess the accounts of the amicus on anongoing basis: R. v. Imona Russel, 2010 CarswellOnt 10747 (S.C.J.) (“Imona Russel #2”). [102] The second case on appeal concerns the trial of Paul Whalen. Mr. Whalen was convicted of a number of seriousindictable offences and the Crown applied to have him declared a dangerous offender. Mr.

Whalen had dismissed two lawyers since thecommencement of proceedings and was unrepresented. He had been unable to retain counsel under his legal aid certificate because of anongoing boycott of legal aid work by criminal defence lawyers in Ontario. The trial judge was of the view that, given the complexexpert evidence that would be led on the application, the fairness of the proceedings would be compromised unless an amicus curiae wasappointed by the court. [103] The trial judge appointed Anik Morrow as amicus because she had already started to develop a relationship ofconfidence with Mr.

Whalen, a difficult client. The judge believed that appointing two other lawyers, as suggested by the AttorneyGeneral, created a risk of destabilizing the proceedings. The trial judge set Ms. Morrow’s rate of compensation at $200 per hour andordered Legal Aid Ontario to manage the account: R. v. Whalen, Sept. 18, 2009, No. 2178/1542 (Ont. Ct. J.). [104] The final case on appeal was initiated by Lawrence Greenspon, a senior counsel. Wahab Dadshani was charged withfirst degree murder.

His case had been before the courts for more than five years when, three months before his trial was to commence,he decided to discharge Mr. Greenspon. As a result, the court appointed Mr. Greenspon as amicus curiae in order to ensure that the trialproceeded as scheduled, whether Mr. Dadshani had counsel or not. Mr. Greenspon performed only 3.25 hours of work as amicus and hisappointment lasted only until Mr. Dadshani’s new counsel confirmed his presence at trial. The trial judge set Mr. Greenspon’s rate ofremuneration for his work as amicus curiae at $250 per hour.

In fixing this rate, the trial judge noted that Mr. Greenspon had more than28 years of experience at the bar and was certified by the Law Society of Upper Canada as a specialist in criminal litigation: R. v.Greenspon, (ON SC), 2009 CarswellOnt 7359 (S.C.J.), at para. 49. [105] The Crown appealed against all four decisions. In its view, trial judges have no jurisdiction to set the amici’s rates ofremuneration, to determine how their budgets will be administered or to order the Attorney General to pay the amici at the rates fixed bythe court.

In the alternative, the Crown contended that the trial judges should have adopted the “least restrictive approach” and stayedthe proceedings rather than order payment. [106] The Ontario Court of Appeal unanimously dismissed the appeals. The court found that incidental to a judge’s powerto appoint an amicus is the power to set the terms and conditions of that appointment, including the rate of compensation and themonitoring of accounts.

It also held that since the cases under appeal do not engage the Charter, a temporary stay of proceedings ― theleast restrictive approach according to the Quebec Court of Appeal in Québec (Procureur général) v. C. (R.) (2003),(QC CA), 13 C.R. (6th) 1, at paras. 162-65 ― was not the appropriate remedy in the circumstances: R. v. Imona Russel, 2011 ONCA303, 104 O.R. (3d) 721. [107] The Crown now appeals to this Court against the judgment of the Ontario Court of Appeal.

III [108] Exceptionally, trial judges may appoint an amicus curiae to ensure the orderly conduct of proceedings and theavailability of relevant submissions. They should not be required to decide contested, uncertain, complex and important points of law or

of fact without the benefit of thorough submissions. [109] Courts are empowered in some instances by specific statutory provisions, such as s. 486.3 of the Criminal Code,R.S.C. 1985, c. C-46, to appoint counsel for particular purposes. They may also order the appointment of defence counsel pursuant to aRowbotham application as a remedy under s. 24(1) of the Charter. [110] The appointment of amici curiae derives, however, from different sources and should be kept conceptually distinct. [111] Superior courts are empowered by their inherent jurisdiction to appoint amici curiae. Most recently, in R. v.

Caron,2011 SCC 5, [2011] 1 S.C.R. 78, at paras. 24 and 29, this Court described the inherent jurisdiction of superior courts as follows: The inherent jurisdiction of the provincial superior courts is broadly defined as “a residual source of powers, which the court may drawupon as necessary whenever it is just or equitable to do so”: I. H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr. LegalProbs. 23, at p. 51.

These powers are derived “not from any statute or rule of law, but from the very nature of the court as a superiorcourt of law” (Jacob, at p. 27) to enable “the judiciary to uphold, to protect and to fulfil the judicial function of administering justiceaccording to law in a regular, orderly and effective manner” (p. 28). . . . . . . . . . In

summary, Jacob states, “The inherent jurisdiction of the court may be invoked in an apparently inexhaustible variety ofcircumstances and may be exercised in different ways” . . . . [Emphasis deleted.] See also MacMillan Bloedel Ltd. v. Simpson, (SCC), [1995] 4 S.C.R. 725, at paras. 29-30; R. v. Cunningham, 2010 SCC10, [2010] 1 S.C.R. 331, at para. 18; Canada (Human Rights Commission) v.

Canadian Liberty Net, (SCC), [1998] 1S.C.R. 626, at paras. 29-32; Halsbury’s Laws of England (4th ed. (reissue) 2001), vol. 37, at para. 12. [112] In the case of statutory courts, the power to appoint an amicus derives from the court’s authority to control its ownprocess in order to administer justice fully and effectively.

Their authority to appoint amici is necessarily implied in the power tofunction as a court of law: R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at paras. 70-71; Cunningham, at para. 19. [113] The Crown did not, either before this Court or the courts below, contest the propriety of the amicus appointments inany of the cases before us. Nor did it challenge the established distinctions between defence counsel, whether appointed pursuant to alegal aid certificate or under a Rowbotham order, and amicus curiae.

The Crown’s appeal is restricted to a single question: whether trialjudges have jurisdiction to fix an amicus’s rate of remuneration. [114] I think it useful nonetheless to provide some guidance regarding the circumstances in which an amicus appointment isappropriate. An amicus curiae may play many roles but it is important to recognize at the outset that an amicus is not a defencecounsel. Once clothed with all the duties and responsibilities of defence counsel, the amicus can no longer properly be called a “friend ofthe court”. [115] The discretion of trial judges to appoint an amicus is not unrestricted.

The power to appoint should be exercisedsparingly and with caution (see Caron, at para. 30), and appointments should be in response to specific and exceptional circumstances. Trial judges must not externalize their duty to ensure a fair trial for unrepresented accused by shifting the responsibility to amici curiaewho, albeit under a different name, assume a role nearly identical to that of defence counsel. [116] An accused is entitled to forego the benefit of counsel and elect instead to proceed unrepresented.

An amicus shouldnot be appointed to impose counsel on an unwilling accused or permit an accused to circumvent the established procedure for obtaininggovernment-funded counsel: Cunningham, at para. 9. In the vast majority of cases, as long as a trial judge provides guidance to anunrepresented accused, a fair and orderly trial can be ensured without the assistance of an amicus. Such is the case even if the accused’sdefence is not then quite as effective as it would have been had the accused retained competent defence counsel. [117] If appointed, an amicus may be asked to play a wide variety of roles: R. v.

Cairenius (2008), (ON possible situations in which the court may find it advantageous to have the advice of counsel who is not acting for the parties”. [118] Regardless of what responsibilities the amicus is given, however, his defining characteristic remains his duty to thecourt and to ensuring the proper administration of justice. An amicus’s sole “client” is the court, and an amicus’s purpose is to providethe court with a perspective it feels it is lacking ― all that an amicus does is in the public interest for the benefit of the court in thecorrect disposal of the case: R. v.

Lee (1998), (NWT SC), 125 C.C.C. (3d) 363 (N.W.T.S.C.), at para. 12. [119] While the amicus may, in some circumstances, be called upon to “act” for an accused by adopting and defending theaccused’s position, his role is fundamentally distinct from that of a defence counsel who represents an accused person either pur

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