The Ontario Court of Appeal held in R. v. Russel that judges have the jurisdiction to set the rates of compensation for assigned amicus curiae. This case involved the appeal of four criminal proceedings, in which, for various reasons, the trial judges assigned an amicus curiae and set their rates of compensation. The Attorney General argued that while a judge is able to appoint an amicus, they do not have the power to set rates of compensation.
The Attorney General argued that the courts do not have the power to set rates of compensation for amicus curiae because they have no jurisdiction to allocate public funds. The power to allocate public funds and order payment from the Consolidated Revenue Fund rests only with Parliament or the Legislature (Auckland Harbour Board v. The King, [1924] A.C. 318 (P.C.)). The principle is recognized in Ontario through s. 11.1 of the Financial Administration Act, which states that money cannot be paid from the Consolidated Revenue Fund unless the payment is authorized by an Act of the Legislature. The Court held that the power of the court to set rates of compensation for amicus and order the payment does not contravene this principle. It is recognized by both parties that the court may appoint an amicus where it is necessary to avoid an injustice, and the power to set rates of compensation is held to be corollary. Moreover, the Court found the power to order payment of amicus from public funds is authorized in the meaning of s. 11.1 of the Financial Administration Act by both the Proceedings Against the Crown Act (s. 22) and the Financial Administration Act (s. 13), both of which state that where a court properly orders payment, it may be paid from the Consolidated Revenue Fund. A court therefore has the power to set amicus and their rate of compensation and order payment from the Crown.
April 19, 2011
Link to Decision
Mary Phan
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