New & Notable: Accountability and responsibility for public funds

The Criminal Lawyers Association and Lawrence Greenspon believe that the court could – and should in four particular cases – order the Attorney General to pay rates of remuneration, above the legal aid rates, where counsel were appointed as amicus. A majority of the Supreme Court disagreed.


Karakatsanis J, writing for the majority, held that the appointment of amicus, while within the inherent jurisdiction of the Superior Court, does not carry with it the power to set rates of remuneration; “[a]bsent authority flowing from a constitutional challenge or a statutory provision, exercising such power would 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” [para 15].

Karakatsanis J explained this conclusion by first outlining and concluding that the Superior Courts possess inherent jurisdiction, which she outlined as follows:

Thus, the inherent jurisdiction of superior courts provides powers that are essential to the administration of justice and the maintenance of the rule of law and the Constitution.  It includes those residual powers required to permit the courts to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner — subject to any statutory provisions.  I would add, however, that the powers recognized as part of the courts’ inherent jurisdiction are limited by the separation of powers that exists among the various players in our constitutional order and by the particular institutional capacities that have evolved from that separation [para 26].

Karakatsanis J then addressed the impact of this separation of powers:

…the limits of the court’s inherent jurisdiction must be responsive to the proper function of the separate branches of government, lest it upset the balance of roles, responsibilities and capacities that has evolved in our system of governance over the course of centuries.

Indeed, even where courts have the jurisdiction to address matters that fall within the constitutional role of the other branches 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) [paras 30-31].

Karakatsanis J then turned to review and discuss in eloquent detail the appointment and role of amicus, emphasizing the role as one that is a friend of the court, not a quasi defence counsel [paras 44-56].

With this framework, Karakatsanis J returned to the issue of remuneration and concluded as follows:

I agree that the courts have the jurisdiction to set terms to give effect to their authority to appoint amici.  However, I do 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, or that its absence imperils the judiciary’s ability to administer justice according to law in a regular, orderly and effective manner.  To the contrary, the spectre of trial judges fixing and managing the fees of amici imperils the integrity of the judicial process.

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 [paras 64 and 84].

This ruling is an important one. First, it sets out clear and principled guidance for courts in relation to the appointment of an amicus. Second, it recognizes a clear limit to the court’s jurisdiction in relation to the payment of an amicus.

The ruling stands as a clear and well reasoned approach to this issue – one which should cannot be marginalized in misguided attempts to address financial issues in the criminal law context. Its ratio is clear and its application should be broad and principled.