Ontario v. Criminal Lawyers’ Association of Ontario

Ontario v. Criminal Lawyers’ Association of Ontario
Collection
Supreme Court Judgments
Date
2013-08-01
Neutral citation
2013 SCC 43
Report
[2013] 3 SCR 3
Case number
34317
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Ontario
Subjects
Courts
Notes
SCC Case Information: 34317
Decision Content
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 an amicus, the person appointed and the Attorney General should meet to set rates and modes of payment. The judge may be consulted, but should not make orders regarding payment that the Attorney General would have no choice but to obey. If the assistance of an amicus is truly essential and the matter cannot be amicably resolved between the amicus and the Attorney General, the judge’s only recourse may be to exercise his jurisdiction to impose a stay until an amicus can be found. If the trial cannot proceed, the court can give reasons for the 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 orderly conduct of proceedings and the availability 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. The power to appoint an amicus should be exercised exceptionally and with caution. An amicus should not be appointed to impose counsel on an unwilling accused or permit an accused to circumvent the established procedure for obtaining government‑funded counsel. Furthering the best interests of the accused may be an incidental 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 the ability of courts to ensure fair and orderly process should not depend on a reliance on the continuous and exemplary conduct of the Crown, which is impossible to monitor or control. Finally, the Attorney General’s unilateral control over the remuneration of amici curiae might create an appearance of bias and place amici themselves in an unavoidable conflict of interest. As amici often play a role that can be said to be adversarial to the Crown, if the Crown were permitted to determine unilaterally and exclusively how much an amicus is paid, the reasonable person might conclude that the expectation of give and take might lead the amicus to discharge his duties so 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 necessary in the circumstances. The principle that only Parliament can authorize payment out of money from the Consolidated Revenue Fund acts only 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 of remuneration is fixed by the courts, because, with the Financial Administration Act, R.S.O. 1990, c. F.12, the Legislative Assembly has pre‑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. 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. 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 of counsel and his normal rate, and should consider that the amicus is performing a public service paid for with public funds. While the legal aid tariff should be taken into account as a guide, it is not determinative. The ultimate choice of whether to proceed with the prosecution in light of the associated costs remains that of the Attorney General, which thus preserves the proper balance between prosecutorial 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), 64 O.R. (3d) 321; discussed: Auckland Harbour Board v. The King, [1924] A.C. 318; referred to: Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Amendments to the Residential Tenancies Act (N.S.), [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, [1986] 1 S.C.R. 549; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; R. v. Morales, [1992] 3 S.C.R. 711; R. v. Hinse, [1995] 4 S.C.R. 597; R. v. Rose, [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] 1 S.C.R. 78; Al Rawi v. Security Service, [2011] UKSC 34, [2012] 1 A.C. 531; Batistatos v. Roads and Traffic Authority of New South Wales, [2006] HCA 27, 227 A.L.R. 425; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; R. v. Power, [1994] 1 S.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, [1981] 1 S.C.R. 714; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; In re Criminal Code (1910), 43 S.C.R. 434; R. v. Peterman (2004), 70 O.R. (3d) 481; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; Boucher v. The Queen, [1955] S.C.R. 16; Nelles v. Ontario, [1989] 2 S.C.R. 170; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Swain, [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.), [1999] 3 S.C.R. 46; R. v. Rockwood (1989), 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), 41 C.C.C. (3d) 1; Québec (Procureur général) v. C. (R.) (2003), 13 C.R. (6th) 1; R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Cairenius (2008), 232 C.C.C. (3d) 13; R. v. Samra (1998), 41 O.R. (3d) 434; R. v. Lee (1998), 125 C.C.C. (3d) 363; R. v. Bain, [1992] 1 S.C.R. 91; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Auckland Harbour Board v. The King, [1924] A.C. 318; Ontario v. Figueroa (2003), 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 ONCJ 140 (CanLII).
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 de maîtrise 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: Osgoode Society, 1986.
APPEAL from a judgment of the Ontario Court of Appeal (Rosenberg, Goudge and Armstrong JJ.A.), 2011 ONCA 303, 104 O.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), 2011 CarswellOnt 2608, affirming orders for the setting of rates of compensation for and the monitoring of accounts of amici curiae. Appeal allowed, 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 of Manitoba.
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 judicial and 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 in exceptional circumstances; or that the Attorney General is obligated to pay amici curiae when appointed. What is at issue is whether a court’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 judges appointed amici curiae, set higher rates of compensation than those offered by the Attorney General of Ontario and ordered the Attorney General to pay. The Attorney General took the position that, in these cases, the amici played a role similar to that of defence counsel and should accept legal aid rates. The Court of Appeal concluded that provincial and superior courts have the jurisdiction to fix the rates of compensation. 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 a court’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 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.
[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 the basis that the accused could not have fair trials without the assistance of counsel. Instead, the trial judges appointed counsel to assist the accused, who had in each case 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. However, in each of these cases, the role of the amici closely mirrored the role of 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 the request of the Crown, “to ensure the orderly conduct of the trial” (para. 6). The accused had discharged several experienced legal aid counsel and the court had twice refused the accused’s request for an order under s. 24(1) of the Charter providing state-funded counsel in 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 was choosing to remain mute” (para. 13). Subsequently, at the request of the accused, the trial judge told the amicus to take instructions from and act on behalf of the accused as he would in a traditional solicitor-client relationship — except he could not be discharged or withdraw due to a breakdown in the relationship with the accused. Later, after the amicus applied for permission to withdraw from the case, the trial judge appointed a senior criminal lawyer to set a budget for the amicus and to review, monitor and assess his accounts on an 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 was unrepresented and had a history of discharging lawyers. He had difficulty finding legal aid counsel, due to a boycott of legal aid cases by 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 a relationship of confidence with a particular lawyer who would not accept the legal aid rate. An amicus was appointed to establish a solicitor-client relationship with the respondent, with the ability to override the respondent’s instructions in his best interest.
[10] In R. v. Greenspon, 2009 CarswellOnt 7359 (S.C.J.), a former counsel, who had been discharged 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 not required.
[11] In each of these cases, the amicus refused to accept the legal aid rate offered by the Attorney General. The trial judge 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 that superior and statutory courts have the jurisdiction to appoint amici even where s. 24(1) of the Charter does not apply and there is no statutory provision for such an appointment. The capacity of a superior court to appoint an amicus stems from the court’s inherent jurisdiction to act where necessary to ensure that justice can be done. For a statutory court, the capacity stems from the court’s power to manage 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 order to exercise its statutory jurisdiction.
[13] The Court of Appeal concluded that in order to ensure that serious criminal cases can proceed where difficulty is caused by an unrepresented accused, judges must have the ability to secure the assistance of an amicus. To the extent that the ability to fix 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 a superior court’s inherent jurisdiction and a statutory court’s power to control its own processes: (1) the inability to set rates of compensation would unduly weaken the court’s appointment power and ability to name the amicus of its choice (para. 123); (2) the integrity of the judicial process would be imperilled and should not be dependent upon the Crown (para. 124); and (3) unilateral control by 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 to set a specific rate of compensation. The ability to order the government to make payments out of public funds must be grounded in law and a court’s inherent or implied jurisdiction is limited by the separate roles established by our constitutional structure. Absent 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.
[16] I propose to explain my conclusion by first addressing the constitutional framework that surrounds the exercise of a superior court’s inherent jurisdiction. This framework also applies to the exercise of the jurisdiction implied by the ability of statutory courts 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 and jurisdiction exercised by superior, district or county courts at the time of Confederation (Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at pp. 326-27, per Estey J.). As such, superior courts play a central role in 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 courts by either level of government, without amending the Constitution” (MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.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 the judicial role” (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.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 as comprising “those powers which are essential to the administration of justice and the maintenance of the rule of law” (para. 38), which define the court’s “essential character” or “immanent attribute” (para. 30). The core is “a very narrow one which includes only critically important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction and to the preservation of its foundational role within our legal system” (Reference re Amendments to the Residential Tenancies Act (N.S.), [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 this Court 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 of powers, 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 between them. [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, at p. 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 of proceedings 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 Parliament and 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 it can 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 institutional roles 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 the exercise of the inherent jurisdiction of the courts. They require the courts to take into account the structure of our Constitution, which includes 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 de Montréal (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 in safeguarding the values and principles the Charter has entrenched in our constitutional order. 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.
(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, [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 (see Reference re Secession of Quebec, [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 was centralized in the Crown to one in which the powers of the state were exercised by way of distinct organs with separate functions. 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. The legislative branch makes policy choices, adopts laws and holds the purse strings of government, as only it can authorize the spending of public funds. The executive implements and administers those policy choices and laws with the assistance of a professional public service. The judiciary maintains the rule of law, by interpreting and applying these laws through the independent and impartial adjudication of references and disputes, and protects the fundamental liberties and freedoms guaranteed under the Charter .
[29] All three branches have distinct institutional capacities and play critical and complementary roles in our constitutional democracy. However, each branch will be unable to fulfill its role if it is unduly interfered with by the others. In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, McLachlin J. affirmed the importance of respecting the separate roles and institutional capacities of Canada’s branches of government for our constitutional order, holding that “[i]t is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of 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 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.
[31] 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).
(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 Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at p. 728). While the federal government is responsible for the appointment of s. 96 judges, the Constitution has charged the provinces with the responsibility for the administration of justice in the provinces (Constitution Act, 1867 , s. 92(14) ).
[33] Pursuant to this power, the provincial legislatures enact laws and adopt regulations pertaining to courts, rules of court and civil procedure, or delegate this function to another body. They also pass laws to provide the infrastructure and staff necessary to operate the courts and establish schemes to provide legal representation to persons involved in court proceedings. The provincial legislature votes the funds necessary to operate the justice system within the province, and the executive, mainly through the office of the Attorney General, is charged with the responsibility of administering these funds and, more broadly, the administration of justice itself. As Dickson J. stated in Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, at p. 200: “Since Confederation, the provincial departments of the Attorney General have in practice ‘administered justice’ in the broadest sense, at great expense 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 in Court, Cabinet, and Legislature 1791-1899 (1986), at pp. 6-7). The role was continued by the Constitution Act, 1867 , as s. 63 explicitly mentions 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 has special 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), 43 S.C.R. 434, at p. 443, that “custom, tradition and constitutional usage, hav[e] charged [the Attorney General] with the administration of justice within the province as his primary duty”.
[36] The Attorney General remunerates various participants in the criminal justice system — including provincial Crown counsel, court reporters, interpreters, registrars and law clerks. The Attorney discharges his obligation to provide counsel for indigent accused through the establishment of legal aid programs (see R. v. Peterman (2004), 70 O.R. (3d) 481 (C.A.)). Defence counsel appointed under s. 24(1) of the Charter (see, for instance, R. v. Rowbotham (1988), 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 a conflict of interest. Instead, this role is consistent with the Attorney’s responsibilities and public accountabi