Canada's top court ruled today that the rate of pay for lawyers who act as "friends of the court" should be set by the Ontario government, not by judges.
The 5-4 decision overturns a decision from the Ontario Court of Appeal that had found provincial and superior courts have the jurisdiction to fix the rates of compensation.
There was no dispute over whether courts are allowed to appoint amici curaie, more commonly known as friends of the court, or over whether the provincial government has to pay the bills. What was at issue was who gets to decide what the lawyers get paid.
The use of friends of the court is becoming an increasingly relevant issue because the legal system is seeing a growing number of people face charges without legal representation. Other provinces were keeping a close eye on this case because of its implications beyond Ontario.
When a judge appoints an amicus, it's up to the judge to decide what role that lawyer will play. They can be asked to, among other things, examine witnesses and write submissions or help the judge communicate with the accused. The appointments are often made to prevent delays in lengthy cases and to uphold the right of an accused to get a fair trial.
In three separate cases from Ontario courts, judges appointed friends of the court to assist the accused who were either unable to obtain legal aid or were disruptive clients with a history of firing their lawyers.
The attorney general wanted the lawyers paid at the legal aid rates but the lawyers refused to accept those fees and the trial judges set higher rates of pay and ordered the government to pay them.
The Ontario government appealed those decisions, arguing that the courts didn't have the authority to fix the rates.
Justice Andromache Karakatsanis, who wrote the decision for the majority, agreed, writing that "courts do not have the institutional jurisdiction to interfere with the allocation of public funds." Courts must respect the constitutional roles and capacities of the legislature, the executive and the judiciary, the decision said.
"It is for the duly elected members of the legislature to determine what funds are expended on the administration of justice, not the judges," Karakatsanis wrote. Allowing judges to fix the rates would be an overstepping of the judiciary's responsibilities and would blur the lines between the three branches of government, she concluded.
Concerns over legal aid
"There is a real risk that such a disregard of the separation of powers and the constitutional role and institutional capacity of the diffrent branches of government could undermine the legal aid system and cause a lack of public confidence in judges and the courts," the decision said.
Justice Morris Fish wrote for the dissenting justices and said that granting exclusive power to the attorney general to fix the pay rates "would unduly weaken the courts' appointment power and ability to name an amicus of their choosing."
Fish said that the attorney general and the lawyer should try and agree on a rate and if they can't, it should be up to the trial judge to decide.
"While the legal aid tariff should be taken into account as a guide, it is not determinative," he wrote.
In 2008, Ottawa lawyer Lawrence Greenspon was asked to be a friend of the court in the case of a man charged with first-degree murder. Greenspon had been the man's lawyer but the accused fired him three months before the trial.
In Greenspon's case, the judge set his rate at $250 per hour. He performed about three hours of work and his appointment lasted only until the man's new lawyer was at the trial.
Greenspon said during an interview in advance of the Supreme Court ruling that the legal aid system is for all intents and purposes bankrupt. "There is not enough money in the legal aid system to properly compensate middle- and senior-level lawyers on serious charges."
He added that friends of the court don't perform the same duties as defence counsel and that paying them a legal aid wage could deter experienced lawyers from taking on these often complicated cases.
While the case may sound like a narrow and technical legal question, University of Ottawa law professor Carissima Mathen said it does affect the public.
"If the court feels that there's a threat to a fair trial, the ultimate result is that the case can be thrown out and the court can issue a stay and then the trial never goes ahead. So I think the public has a keen interest in ensuring the justice system functions appropriately."