SCC File No.: 34317
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant and
CRIMINAL LAWYERS’ ASSOCIATION OF ONTARIO
Respondent
AMENDED FACTUM on behalf of THE APPELLANT, HER MAJESTY THE QUEEN (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
ATTORNEY GENERAL OF ONTARIO BURKE, ROBERTSON Crown Law Office – Civil Barristers and Solicitors 720 Bay Street, 8th Floor 70 Gloucester Street Toronto, ON M7A 2S9 Ottawa, ON K2P 0A2
Malliha Wilson, LSUC #23308I Robert Houston, Q.C. Troy Harrison, LSUC #40867W Tel: 613.236.9665 Kristin Smith, LSUC #55678C Fax: 613.235.4430 Baaba Forson, LSUC #55211O Email: [email protected] Tel.: 416.326. 4953 / 416.326.4188 416.326.4098 / 416.212.5129 Ottawa Agent for the Appellant, Fax: 416.326.4181 Her Majesty the Queen Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected]
Counsel for the Appellant, Her Majesty the Queen
ORIGINAL TO: THE REGISTRAR
COPIES TO: SCHRECK PRESSER LLP BARRISTERS GREENSPON, BROWN & Barristers and Solicitors ASSOCIATES 6 Adelaide Street East, Suite 5 331 Somerset Street West Toronto, Ontario Ottawa, Ontario M5C 1H6 K2P 0J8
P. ANDRAS SCHRECK Lawrence Greenspon Tel: (416) 977-6268 Tel: (613) 288-2890 Fax: (416) 977-8513 Fax: (613) 288-2896 Email: [email protected] Email: [email protected]
Counsel for the Respondent, Ottawa Agent for the Respondent, Criminal Lawyers’ Association of Ontario Criminal Lawyers’ Association of Ontario LAWRENCE GREENSPON GREENSPON, BROWN & 470 Somerset St W ASSOCIATES Ottawa Ontario 331 Somerset Street West K1R 5J8 Ottawa, Ontario K2P 0J8 Tel: (613) 288-2890 Fax: (613) 288-2896 Lawrence Greenspon Tel: (613) 288-2890 Respondent Fax: (613) 288-2896 Email: [email protected]
Ottawa Agent for the Respondent, Lawrence Greenspon WILLIAM IMONA-RUSSEL c/o Wendy Smith Correctional Service of Canada Regional Headquarters Ontario 440 King Street West PO Box 1174 Kingston, ON K7L 4Y8
PAUL WHALEN c/o Wendy Smith Correctional Service of Canada Regional Headquarters Ontario 440 King Street West PO Box 1174 Kingston, ON K7L 4Y8 i
TABLE OF CONTENTS
PAGE PART I – OVERVIEW AND STATEMENT OF FACTS ...... 1 A. Overview ...... 1 B. Ontario’s Statement of Facts ...... 3 Imona-Russel #1 ...... 3 Imona-Russel #2 ...... 3 Whalen ...... 3 Dadshani ...... 4 Court of Appeal Decision ...... 4 PART II – QUESTIONS IN ISSUE ...... 5 PART III – ARGUMENT ...... 5 QUESTION 1: Did the Court of Appeal err in finding that the courts below had the inherent jurisdiction or statutory authority to order Ontario to use public money to fund amicus in the face of the legislature’s exclusive jurisdiction to disburse public funds? ...... 5 QUESTION 1A: Inherent Jurisdiction - did the Court of Appeal err in finding that the courts below had the inherent jurisdiction contrary to Auckland Harbour, s.126 of the Constitution Act, 1867 and s.11.1(1) of the FAA to order Ontario to use public money to fund amicus in the face of the legislature’s exclusive jurisdiction to disburse public funds? ...... 6 QUESTION 1B: Statutory Authority - did the Court of Appeal err in finding that the courts below had the statutory authority to order Ontario to use public money to fund amicus in the face of the legislature’s exclusive jurisdiction to disburse public funds? ...... 16 QUESTION 2: Least Restrictive Approach - in the alternative, did the Court of Appeal err in finding that there was no requirement for the court take the least restrictive approach when it has ordered that amicus is necessary? ...... 23 PART IV – SUBMISSIONS CONCERNING COSTS ...... 31 PART V – ORDER SOUGHT ...... 31 PART VI – TABLE OF AUTHORITIES ...... 32 PART VII – TABLE OF STATUTES & REGULATIONS ...... 35 1. Financial Administration Act, R.S.O. 1990, c. F.12, ss. 11.1(1), 13 ...... 37 2. Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 22 ...... 38
1
PART I – OVERVIEW AND STATEMENT OF FACTS
A. Overview
1. This is an appeal by the Attorney General of Ontario (“Ontario”) on leave from a decision of the Court of Appeal for Ontario (Court of Appeal) with respect to four companion decisions on court-ordered funding for amicus curaie (amicus) in criminal proceedings. In each case, the respective trial judges appointed amicus and assigned a role to amicus that was essentially a mirror of the role of defence counsel. Over the objections of the Attorney General, the trial judges each ordered that the Attorney General pay the fees for amicus at rates higher than the legislated legal aid rates for defence counsel. The courts below expressly held that none of these cases engaged Charter rights. The four appeals were dealt with in a single decision by the Court of Appeal styled as R. v. Imona-Russel1 which is proceeding as one appeal before this Court.
2. Fair trials are a fundamental element of Canada’s constitutional structure and criminal justice system. While the courts and the government share the responsibility to ensure fair trials, because of their varied institutional capacity, the courts and the government play different roles in carrying out this responsibility. The normal vehicle through which Ontario fulfills its constitutional obligations to ensure fair trials is through a legal aid scheme which Canadian courts have repeatedly recognized is the sole responsibility of the government and meets the government’s constitutional obligations.2
3. The vast majority of indigent accused are represented by defence counsel through the legal aid system. However, in rare cases, the appointment of counsel to secure a fair trial may require the court to appoint counsel (a Rowbotham order) or amicus. In order to ensure an accused receives a fair trial, the courts have jurisdiction to appoint amicus and to define the role that amicus will play in the proceeding. Further, Ontario accepts that in order to proceed with
1 R. v. Imona-Russel, 2011 ONCA 303, Appellant’s Record (“A.R.”), Tab 10, p. 54 2 See R. v. Prosper, [1994] 3 S.C.R. 236, Appellant’s Book of Authorities (“A.B.A.”), Tab 37, pp. 254-255; R v D.P.F., [2000] N.J. No. 110 (Nfld. T.D.) at para. 46, A.B.A., Tab 26, p. 183; R v Magda, [2001] O.J. No. 1861 (S.C.J.) at para. 56, A.B.A., Tab 31, p. 207; R. v. Peterman, [2004] O.J. No. 1758 (C.A.) at para. 20-22, A.B.A., Tab 36, pp. 240-241 2
the prosecution and meet its constitutional obligations to ensure a fair trial, it is required to and will pay for the amicus that has been appointed by the court.
4. However, this does not mean that the courts have, or need to have, the jurisdiction to set the rates of amicus and order Ontario to pay any more than the court would do so in cases where legal aid funding is available or when making Rowbotham orders. It remains the role of the government to determine how counsel is paid and provide the funds necessary. The decision risks the careful and effective process developed by the Attorney General and Legal Aid Ontario (“LAO”) for appointment of amicus and there is no evidence that the Attorney General has ever failed to provide amicus in any proceeding. Accordingly, the Court of Appeal erred in concluding that the courts below had the inherent, necessarily incidental or statutory authority to set the rate of compensation for amicus and compel the province to pay the amounts ordered by the court from the Consolidated Revenue Fund (“CRF”). The Ontario Court of Appeal is the first and only appellate level court in Canada to hold that the court can order public funding of counsel in an undefined amount for the purpose of controlling its own process where neither the Charter nor the conditions for an advanced costs order apply. In doing so the Court of Appeal disregarded the exclusive authority of the Legislature to control the spending of public monies contrary to the settled constitutional principle of Auckland Harbour Board v. The King.3 The Court also expanded the scope of procedural provisions in the Proceedings Against the Crown Act (“PACA”)4 and the Financial Administration Act (“FAA”)5 to confer substantive jurisdiction on the courts below.
5. In the alternative, Ontario submits that the Court of Appeal erred in finding that funding orders were necessary where there were other less restrictive orders which the courts below could have made to ensure a fair trial. In doing so the Court of Appeal effectively authorized an alternative legal aid regime at significantly higher rates of compensation and with none of the controls, transparency or public accountability provided for under the Legal Aid Services Act, 19986.
3 Auckland Harbour Board v. The King, [1924] A.C. 318 (P.C.) at pp. 326-27, A.B.A., Tab 2, p.11 4 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, Part VII 5 Financial Administration Act, R.S.O. 1990, c. F.12, Part VII 6 Legal Aid Services Act, 1998, S.O. 1998, c. 26, A.B.A., Tab 65, pp. 364-427 3
6. This jeopardizes the constitutional separation of powers, which is based on the different institutional capacity and roles of each of the legislative, executive and judicial branches.7 This has significant implications for the capacity of the legislature in every jurisdiction in Canada to plan and control the expenditure of public funds. Ontario respectfully requests that the decision of the Court of Appeal be overturned. Ontario is not seeking to recover any of the amounts paid to counsel.
B. Ontario’s Statement of Facts
Imona-Russel #1
7. Mr. Imona-Russel was charged and convicted of first degree murder. Several defence counsel acting under legal aid certificates were dismissed by the accused. At the request of the Crown amicus was appointed. The Superior Court trial judge subsequently expanded the role of amicus to effectively mirror that of defence counsel. The trial judge then made an order increasing the rate of compensation for amicus to $192 per hour.8
Imona-Russel #2
8. Less than a week before trial in the Imona-Russel proceeding, the trial judge, at the urging of amicus, made an order that LAO be replaced by private sector counsel as manager of the amicus account. The trial judge set the rate for counsel assessing the amicus accounts at $192 per hour. 9
Whalen
9. Mr. Whalen was charged with assault bodily harm, pointing a firearm, use of a firearm while committing an indictable offence, assault, forcible confinement, assault with a weapon and
7 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at paras. 26-27 and 101, A.B.A., Tab 40, pp. 280-283 8 R. v. Imona-Russel, 2011 ONCA 303 at paras. 4-13, A.R., Tab 10, pp. 57-62 9 R. v. Imona-Russel, 2011 ONCA 303 at paras. 16-19, A.R., Tab 10, pp. 62-65 4
two counts of breach probation. The charges related to alleged assaults on Mr. Whalen’s girlfriend. The Crown brought a Dangerous Offender application.10
10. Mr. Whalen had a legal aid certificate and there were two lawyers prepared to accept either the certificate or an appointment as amicus without an order as to rates. Instead, the trial judge appointed a less senior counsel, purported to create a solicitor-client relationship between the amicus and the accused, and set the rate of compensation for amicus at $200 an hour.11
Dadshani
11. Mr. Dadshani was charged with first degree murder. He retained Mr. Lawrence Greenspon under a legal aid certificate. He subsequently dismissed Mr. Greenspon shortly before the trial was to commence. The Superior Court trial judge removed Mr. Greenspon as counsel of record but appointed him as amicus to ensure the trial would proceed in the event the accused was unable to retain another lawyer.12
12. Less than a month later the accused retained another counsel under a legal aid certificate who was prepared to proceed on the dates already set and the Court discharged Mr. Greenspon as amicus. The Court set the rate of compensation for amicus at $250.00 an hour.13
Court of Appeal Decision
13. The four appeals were heard by the Ontario Court of Appeal on January 18, 2011. None of the individual respondents participated in the appeal. The Criminal Lawyers Association for Ontario (CLA) was appointed as intervener by the Court of Appeal and responded on all issues in a factum and oral submissions.14
14. On April 19, 2011, the Court of Appeal dismissed the four appeals.15
10 R. v. Imona-Russel, 2011 ONCA 303 at para. 21, A.R., Tab 10, pp. 65-66 11 R. v. Imona-Russel, 2011 ONCA 303 at paras. 21-23, A.R., Tab 10, pp. 65-67 12 R. v. Imona-Russel, 2011 ONCA 303 at paras. 25-26, A.R., Tab 10, pp. 67-68 13 R. v. Imona-Russel, 2011 ONCA 303 at para. 26, A.R., Tab 10, p. 68 14 R. v. Imona-Russel, 2011 ONCA 303 at para. 1, A.R., Tab 10, pp. 55-56 15 R. v. Imona-Russel, 2011 ONCA 303 at para. 80, A.R., Tab 10, p. 96 5
15. Ontario sought leave to appeal to this Honourable Court on June 17, 2011. Leave to appeal was granted April 5, 2012.
PART II – QUESTIONS IN ISSUE
16. Ontario submits that this appeal gives rise to two questions:
1. Did the Court of Appeal err in finding that the court has the: (A) inherent jurisdiction, or (B) the statutory authority to order Ontario to use public money to fund amicus in the face of the legislature’s exclusive jurisdiction to disburse public funds?
2. In the alternative, did the Court of Appeal err in finding that there was no requirement for the court to adopt the least restrictive approach when it has ordered that amicus is necessary to protect an accused’s fair trial rights?
Ontario respectfully submits that the answer to each question is "yes".
PART III – ARGUMENT
QUESTION 1: Did the Court of Appeal err in finding that the courts below had the inherent jurisdiction or statutory authority to order Ontario to use public money to fund amicus in the face of the legislature’s exclusive jurisdiction to disburse public funds?
17. The Court of Appeal concluded that the power to appoint amicus must include the power to set the rate of compensation and to compel the Attorney General to pay. At the heart of the Court’s reasoning is the concern that if it did not have the power to set the rate of compensation then it could not secure the appointment of amicus and “could not fulfill its function to administer justice according to law.”16
16 R. v. Imona-Russel, 2011 ONCA 303 at paras. 37 and 45-46, A.R., Tab 10, pp. 73, 78-79 6
18. The Court of Appeal reached this conclusion even though the Court also accepted that the power to spend public monies rests exclusively with the Legislature as both a constitutional principle and under s.11.1(1) of the FAA.17
19. The Court of Appeal relied on s.22 of PACA and s.13 of the FAA as authority for the courts to order the payment of monies from the CRF.18
20. The Court of Appeal erred by conflating the inherent jurisdiction of the court with the statutory authority under the PACA and the FAA to pay otherwise valid court orders made within the court's existing jurisdiction. Ontario submits that the issues of inherent jurisdiction and statutory authority are analytically distinct. Neither, separately or cumulatively, provides authority for the court to compel the spending of public monies to pay amicus at a particular rate of compensation to be set by the court.
QUESTION 1A: Inherent Jurisdiction - did the Court of Appeal err in finding that the courts below had the inherent jurisdiction contrary to Auckland Harbour, s.126 of the Constitution Act, 1867 and s.11.1(1) of the FAA to order Ontario to use public money to fund amicus in the face of the legislature’s exclusive jurisdiction to disburse public funds?
21. Ontario submits that the Legislature has the exclusive authority to allocate public monies. The exclusivity of this authority is a matter of constitutional principle recognized in Auckland Harbour Board v. the King and under s.126 of the Constitution Act, 1867 and by statute under the s.11.1(1) of the FAA.19
22. The Court of Appeal accepted that the Auckland Harbour principle is part of Canadian constitutional law, but stated that, “the Auckland Harbour principle does not excise the power to set the rate of compensation and order the state to pay from the jurisdiction to appoint amicus.”20 According to the Court of Appeal the Auckland Harbour principle applies, yet courts have the
17 R. v. Imona-Russel, 2011 ONCA 303 at paras. 47-49, A.R., Tab 10, pp. 79-81; Financial Administration Act, R.S.O. 1990, c. F.12, s. 11.1(1), Part VII 18 R. v. Imona-Russel, 2011 ONCA 303 at paras. 50-52, A.R., Tab 10, pp. 81-82; Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 22, Part VII; Financial Administration Act, R.S.O. 1990, c. F.12, s. 13, Part VII 19 Auckland Harbour Board v. The King, [1924] A.C. 318 (P.C.) at pp. 326-27, A.B.A. Tab 2, p. 11; Financial Administration Act, R.S.O. 1990, c. F.12, s. 11.1(1), Part VII; Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 126, A.B.A., Tab 56, p. 346. See also Campbell, Parliamentary Appropriations, HeinOnline - 4 Adel. L. Rev. 145 1971-1972, A.B.A., Tab 4, pp. 22-45 20 R. v. Imona-Russel, 2011 ONCA 303 at para. 52, A.R., Tab 10, p. 82 7
inherent jurisdiction to set the fees for amicus and to order the government to pay those fees at rates set by the court. These two positions are, with greatest respect, conceptually inconsistent and irreconcilable in practice: if the Auckland Harbour principle applies, then the court cannot have this inherent jurisdiction; if the court has this inherent jurisdiction, the Auckland Harbour principle cannot apply. With respect, Ontario submits that the Court of Appeal provides no explanation for how the Legislature can have the exclusive authority to allocate public monies while the courts also simultaneously have the inherent jurisdiction to allocate public monies. In that case, the Legislature's spending authority would be shared and not exclusive.
23. The question of whether or not s.22 of the PACA and s.13 of the FAA provide statutory authority for the court to allocate public monies will be addressed in the next section of this factum. However, these statutory provisions have no bearing, in any event, on the question of the court's inherent jurisdiction. If the court has the inherent jurisdiction to allocate public monies then statutory authority is not required. If statutory authority is required then the power to allocate public funds flows from that statutory authority and not from the court's inherent jurisdiction. In other words, these statutory provisions cannot function to create jurisdiction. Nor can reference to these provisions operate to inform the court’s inherent jurisdiction given its recognition that the Auckland Harbour principle is part of Canadian constitutional law.
24. The exclusive authority of the Legislature to allocate public monies is both a constitutional principle and codified in statute. The constitutional principle was explained by the Privy Council in 1924 in Auckland Harbour and is captured by the following passage from the Privy Council’s decision:
.. For it has been a principle of the British Constitution now for more than two centuries, a principle which their Lordships understand to have been inherited in the Constitution of New Zealand with the same stringency, 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. The days are long gone by in which the Crown, or its servants, apart from Parliament, could give such an authorization or ratify an improper payment. Any payment out of the consolidated fund made without Parliamentary authority is simply illegal and ultra vires, and may be recovered by the Government if it can, as here, be traced.21
21 Auckland Harbour Board v. The King, [1924] A.C. 318 (P.C.) at pp. 326-27, A.B.A. Tab 2, p. 11 8
25. As applied to Ontario, the principle is also captured, in part, in s. 126 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3: Such Portions of the Duties and Revenues over which the respective Legislatures of Canada, Nova Scotia, and New Brunswick had before the Union Power of Appropriation as are by this Act reserved to the respective Governments or Legislatures of the Provinces, and all Duties and Revenues raised by them in accordance with the special Powers conferred upon them by this Act, shall in each Province form One Consolidated Revenue Fund to be appropriated for the Public Service of the Province.22
26. This authority is also codified in statute under s.11.1(1) of the FAA which provides that "[M]oney shall not be paid out of the Consolidated Revenue Fund and neither a non-cash expense nor a non-cash investment shall be recognized by the Crown unless the payment or the recognition is authorized by this or another Act of the Legislature".23
27. The Canadian Judicial Council has recognized the continuing importance of the principles articulated in Auckland Harbour: The rule that no money can be taken out of the consolidated revenue fund without parliamentary authorization… […] … is one of the most deeply rooted principles in the British constitutional tradition. It belatedly followed the relinquishment by the Crown of all powers pertaining to taxation, which the parliament at Westminster can arguably be said to have obtained towards the end of the 14th century, but which remained a matter for legal and political controversy well in to the 17th century. The constitutional pedigree of this principle lies in its being inextricably bound up with the democratic evolution that led to the adoption of the Bill of Rights in 1689. It is one of the rules that most clearly embody the notion of democratic accountability and it is legal, not merely conventional.24
28. The Canadian Judicial Council went further and concluded that the inherent jurisdiction of the court does not extend to ordering funding even for matters that have a direct and immediate impact on the functioning of the judicial process: inherent jurisdiction assumes that the court has the power to control access to courthouses and give individuals access to them; that the court can control its
22 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 126, A.B.A., Tab 56, p. 346 23 Financial Administration Act, R.S.O. 1990, c. F.12, s. 11.1(1), Part VII 24 Canadian Judicial Council, Alternative Models of Court Administration (Ottawa: Her Majesty the Queen in Right of Canada, 2006) at p. 56, A.B.A., Tab 6, p. 59 9
procedure by ensuring that its hearings are public or by excluding certain persons, dismissing frivolous and vexatious applications, correcting procedural inequities, suspending proceedings regarded as wrongful, adopting rules of practice, or determining in a case of two conflicting decisions of administrative courts which shall take priority, and so on. […] Inherent jurisdiction in Canada has not typically been considered as including the power to resolve purely administrative questions25 that have a direct and immediate impact on the functioning of the judicial process... It is crucial to bear in mind that inherent powers, by definition, inhere in courts and their jurisdiction and so cannot be analysed independently of the role the judiciary is expected to play in the constitutional structure […] They remain a valuable safeguard, but one which should not be expected to form the basis of fundamental changes in institutional arrangements.26 [Emphasis added]
29. Courts in other jurisdictions and in Ontario have also held that the power to allocate public funds by setting fees for counsel is exclusively that of the legislature. In all these cases, the courts have recognized the institutional constraints that render the judiciary unsuitable to allocate public funds.
30. R. v. Cai27 involved an appeal concerning the rate of pay for state funded counsel in a criminal proceeding. While the Alberta Court of Appeal did not determine the case on this issue, the Court did refer to the serious constitutional problems associated with the courts purporting to allocate public funds:
A court granting money creates a grave constitutional problem. The Constitution Act 1867 gives Canada a constitution "similar in principle" to that of the United Kingdom. The first principle of the British constitution, written in the blood of the Civil War of the 1640s and the Revolution of 1688, is this. The Crown cannot
25 In this context, “purely administrative questions” includes such matters as human resources issues (hiring and firing of employees), the maintenance of adequate premises for judicial functions and their upkeep, and the purchase of equipment and services necessary for courts to function: Canadian Judicial Council, Alternative Models of Court Administration (Ottawa: Her Majesty the Queen in Right of Canada, 2006) at pp. 44 and 46, A.B.A., Tab 6, pp. 54- 56 26 Canadian Judicial Council, Alternative Models of Court Administration (Ottawa: Her Majesty the Queen in Right of Canada, 2006) at pp. 42-47, A.B.A., Tab 6, pp. 52-57 27 To the extent that R. v. Cai, 2002 ABCA 299 and R. v. Ho, 2003 BCCA 663 state that the court does not have authority under the Charter to make monetary orders, Ontario accepts that this Honourable Court decided in Ward v. Vancouver (City), 2010 SCC 27, that the court has the authority to make monetary damages awards under section 24(1) of the Charter. See R. v. Cai, 2002 ABCA 299 at paras. 5, 9, 26, 93, A.B.A., Tab 22, pp. 151-155; R. v. Ho, 2003 BCCA 663 at para 70, A.B.A., Tab 30, p. 205; and Ward v. Vancouver (City), 2010 SCC 27 at paras. 4 and 21-22, A.B.A., Tab 47, pp. 325-328 10
impose taxes or spend money alone. Parliament, especially the Commons, must vote supply: Dicey, An Introduction to the Study of the Law of the Constitution 317 (10th ed. 1959).28
31. In Canada v. Savard the trial judge made an order under s.672.24 of the Code appointing counsel for an unrepresented accused believed to be unfit to stand trial and a further order requiring the Attorney General of Canada to pay counsel’s fees. On appeal of the fees order, a majority of the Yukon Territory Court of Appeal overturned the decision below and adopted the finding of the Court in Auckland Harbour that the court cannot order the allocation of public funds: .. For it has been a principle of the British Constitution now for more than two centuries, a principle which their Lordships understand to have been inherited in the Constitution of New Zealand with the same stringency, 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. The days are long gone by in which the Crown, or its servants, apart from Parliament, could give such an authorization or ratify an improper payment. Any payment out of the consolidated fund made without Parliamentary authority is simply illegal and ultra vires, and may be recovered by the Government if it can, as here, be traced. [Emphasis added]29
32. In R. v. Ho, the British Columbia Court of Appeal stated that there was no constitutional authority for the courts to compel the Crown to allocate public funds in a certain way. It is the legislature and not the courts that has the authority to determine how public funds should be allocated: I see nothing in the enactments of 1982 which, expressly or by necessary implication, gave the courts the power to create or confer, in the absence of an appropriation or a specific statutory authorization, a power in the Crown, whether in right of Canada or of a province or any minister thereof, to expend public funds and then to require some officer or servant of the Crown to exercise that power. If a court does so, and Parliament or the Legislature, as the case may be, chooses, as, in my opinion, it has every right to do, not to appropriate funds to meet the judgment, the court's judgment becomes a mere brutum fulmen.30
33. In 2010, the British Columbia Court of Appeal considered the issue of court-ordered rates for the public funding of counsel in the context of amicus. In R. v. Martin, the Court re-asserted
28 R. v. Cai, 2002 ABCA 299 at paras. 5, 9, 26, 93, A.B.A., Tab 22, pp. 151-155 29 Canada v. Savard, [1996] Y.J. No. 4 (C.A.) at paras. 104, 112, 113, 118 and 119, A.B.A., Tab 5, pp. 48-50 30 R. v. Ho, 2003 BCCA 663 at para. 70, A.B.A., Tab 30, p. 205 11
that it is within the court’s jurisdiction to appoint amicus. However, in so holding, the Court ruled that if amicus is to be paid with public funds, the Attorney General must agree to the appointment. A trial judge has the discretion to appoint an amicus curiae. However, if the amicus is to receive reimbursement, the Attorney General must agree to the appointment…[W]here, as in this situation, an accused is in a position to hire counsel but opts to represent himself, the appointment of an amicus will only be an option if he is unable to adequately put his defence before the jury.31
34. The Ontario Court of Appeal acknowledged the Martin decision but ruled that the case was distinguishable from the case at bar on the basis that the issue of funding was not before the Court in Martin, and further that the Court in Martin had found that an amicus order was not necessary. The Ontario Court of Appeal also held that the British Columbia Court of Appeal had not cited any authority for the proposition that the court requires the Attorney General’s permission before it can order the government to pay for amicus.32
35. The Court of Appeal in Martin, however, cited both R. v. Miner and R. v. P.H.L.W., two prior decisions of the British Columbia Court of Appeal, in support of this proposition. There is a clear implication in both of these decisions that the British Columbia Court of Appeal did not see itself as being capable of ordering the government to pay for amicus without the government’s consent. The Ontario Court of Appeal in the case at bar did not acknowledge these cases, and held that Martin did not apply because funding was not explicitly addressed. Ontario submits that this was an error, and that the reasoning of the British Columbia Court of Appeal is superior.33
36. In Conseil scolaire francophone de la Colombie-Britannique v. British Columbia the British Columbia Supreme Court found that the court had the jurisdiction to order the payment of public funds only to remedy Charter breaches. The Court reviewed recent Canadian cases in which the Auckland Harbour principle had been applied and found that the Auckland Harbour principle governed in the absence of statutory authority or Charter breach.
31 R. v. Martin, 2010 BCCA 526 at para. 49, A.B.A. Tab 33, p. 231 32 R. v. Imona-Russel, 2011 ONCA 303 at paras. 61-62, A.R., Tab 10, pp. 88-90 33 R. v. Miner, [1997] B.C.J. No. 625 (C.A.) at para. 4, A.B.A., Tab 34, p. 233; R. v. P.H.L.W., 2004 BCCA 522 at para. 21, A.B.A., Tab 35, p. 236 12
In most cases the principle described in Auckland Harbour Board is a bar to ordering the payment of funds out of the general revenues. In cases where Charter relief is sought, however, it is a brake upon, but not a bar, to the exercise of the court’s remedial jurisdiction.34
37. In 2003, the Quebec Court of Appeal addressed the issue of public funding of counsel in the Charter context in Quebec v. R.C. After an extensive review of the authorities, the Court found in that case that the court did not have the jurisdiction to set the amount of fees that it considers reasonable and that it is not the task of the court to interfere in the allocation of the limited resources of the government.35
38. In addition to being inconsistent with decisions from other Canadian appellate courts, the Ontario Court of Appeal’s decision is also inconsistent with its own decisions in R. v. Rowbotham and R. v. Peterman. In both of these cases the Court of Appeal did not find in favour of the court setting the rate of compensation for counsel.36
39. In R. v. Cyr, a decision of Justice Ramsay of the Ontario Superior Court dated December 4, 2009, he adopted the reasoning in these cases and concluded that the courts do not have the authority to set the rate of compensation for counsel: If I had been satisfied of the need to fund these particular lawyers, I would not have fixed the rate of compensation or made an order that amounts to the same thing. I would have entered a stay on the government’s failure to fund the named lawyers within a certain period. That would have left the government with the full range of flexibility that it requires to discharge its constitutional functions. On this question I agree with the reasons given by the Quebec Court of Appeal in RC for preferring this remedy…I also agree with the more stirring exposition of the constitutional implications given by the Alberta Court of Appeal in Cai.37
40. While there is limited international jurisprudence dealing with the application of the Auckland Harbour principle, the Supreme Court of Appeal of South Africa addressed the issue of the court's authority to compel the spending of public funds in Legal Aid Board v. State and
34 Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2011 BCSC 1219 at para. 32, A.B.A., Tab 8, p. 76 35 Attorney General of Quebec v. R.C, [2003] Q.J. No. 7541 (C.A.) at para. 177, A.B.A., Tab 1, p. 8; R. v. Grant, 2003 MBQB 254 [2003] at para. 29, A.B.A., Tab 29, p. 202 36 R. v. Rowbotham, [1988] O.J. No. 271 (C.A.), A.B.A., Tab 38, pp. 256-267; R. v. Peterman, [2004] O.J. No. 1758 (C.A.) at para. 41, A.B.A., Tab 36, p. 244 37 R. v. Cyr, Zvolensky and Qawash, [2009] O.J. No. 5535 (S.C.J.), at paras. 19 and 20, A.B.A., Tab 25, pp. 179-180 13
Others in 2011. Relying in part on the Ontario Court of Appeal decision in R. v. Peterman and noting that Canadian jurisprudence was particularly instructive, the Court concluded that the High Court of Justice did not have the power to order the Legal Aid Board to provide counsel to the accused. In reaching this conclusion, the Court recognized the role that the judiciary plays in the constitutional structure and noted that the courts derive their power from the Constitution and should refrain from exercising executive or legislative functions: “Courts therefore have a duty to patrol – but not cross – the constitutional borders defined by the Constitution.” Judicial deference did not imply judicial timidity or unwillingness to perform the judicial function to ensure a fair trial but was an appreciation by the court of the limits of its own decision-making power.38 Courts do not control the public purse, nor do they have the power to conscript the legal profession to render services without compensation. It was for the other arms of government to ensure that adequate provision was made for legal representation at state expense.39
41. The Ontario Court of Appeal below distinguishes cases arising in the Charter context but offers no explanation for its proposition that established principles with regard to the institutional capacity and expertise of the legislature to allocate public funds do not apply simply because the Charter is not engaged. The Court of Appeal does not articulate why “the spectre of the courts
38 See Legal Aid Board v. State and Others, [2011] 2 L.R.C 635 (South Africa S.C.A.) at para. 40, A.B.A., Tab 15, p. 104 where the Court emphasized that the right to counsel must be balanced against competing demands on the public purse: If legal representation is indeed an advantage, as it must be to an accused person in practically every case, then it must follow that it would be in the interests of justice that representation be available in practically every case, if necessary at public expense. Moreover, it would be in the interests of justice that such representation be of the highest calibre. But as it was put in Dietrich v R [1993] 3 LRC 272 at 317-318 per Dawson J: ‘If the interests of justice are to be pursued without regard to other considerations, then clearly they require not only a fair trial but the fairest possible trial. But the interests of justice cannot be pursued in isolation. There are competing demands upon the public purse which must be reconciled and the funds available for the provision of legal aid are necessarily limited. The determination of what funds are to be made available is not a function which the courts can or should perform ... Nor are the courts equipped to determine how the available funds are to be distributed--for example, whether it is preferable to spread them amongst the largest number of cases possible or to devote them to a smaller number of complex or more costly cases.’ 39 Legal Aid Board v. State and Others, [2011] 2 L.R. 635 (South Africa S.C.A.) at paras. 36-49, A.B.A., Tab 15, pp. 103-107 14
telling the state to spend public funds […] to see that justice is done” is any less problematic than “the spectre of the courts telling the state to spend public funds to fulfill constitutional rights.”40
42. Ontario accepts that there are two exceptions to the Auckland Harbour principle, in the context of publicly funded counsel, but submits that neither applies in the cases at bar. First, there are statutory provisions which specifically provide the court with the jurisdiction to appoint, fund, and set rates for counsel.41 Second, there exists a constitutional exception: s. 24(1) of the Charter gives a court jurisdiction to order the government to pay for counsel in Charter cases subject to a consideration of the least restrictive approach.42 Further, this Court’s holdings in British Columbia v. Okanagan Indian Band, Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue) and R. v. Caron stand for the proposition that a court can, in “special circumstances”, order advanced costs awards against the Crown where an issue of public importance is engaged.43 These three cases arise in the context of proceedings against the Crown. In proceedings against the Crown, the court has the statutory authority to make a costs order.44
43. Neither of these exceptions arise in this case as there are no specific statutory provisions dealing with funding for amicus. Moreover, no Charter relief was sought and the Court of Appeal expressly concluded the Charter did not apply in the four appeals.45 . In addition, these exceptions do not support an argument that the court has an inherent jurisdiction to order the allocation of public monies. Indeed, the existence of these exceptions support the proposition that as a general rule the court otherwise has no authority to allocate public funds.
40 R. v. Imona-Russel, 2011 ONCA 303 at para. 54, A.R., Tab 10, p. 85 41 Criminal Code, R.S.C. 1985, c. C-46, ss. 684 and 694.1, A.B.A., Tab 57, pp. 349-351; R. v. White, 2010 SCC 59, A.B.A., Tab 39, pp. 268-271 42 New Brunswick v. G.(J.), [1999] 3 S.C.R. 46 at paras. 101-108, A.B.A., Tab 19, pp. 138-140; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2011 BCSC 1219 at paras. 31-33, A.B.A., Tab 8, p. 76 43 British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at paras. 38-41, A.B.A., Tab 3, pp. 19-21; Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2 at paras 36-44, A.B.A., Tab 16, p. 108; R. v. Caron, 2011 SCC 5 at paras. 6-9 and 36-39 and 46-47, A.B.A., Tab 24, pp. 171-176 44 In R. v. Caron, this court did not consider the appropriation issue. Section 24 of the Alberta Proceedings Against the Crown Act, R.S.A. 2000, c. P-25 provides jurisdiction to order costs in civil proceedings. The Caron proceeding could be characterized as such. 45 R. v. Imona-Russel, 2011 ONCA 303 at para. 34, A.R., Tab 10, p. 72 15
44. Furthermore, Ontario respectfully submits that the Court of Appeal’s reasoning is based on assumptions that were not supported at law nor on the evidence before the Court. In particular, the Court of Appeal concluded that unless the court has the power to set the rate of pay for amicus, the court’s capacity to appoint amicus will be hollow, as the role will not be filled.46
45. With respect, Ontario submits that this assumption is not accurate. First, courts generally assume that the Crown will obey and fulfill lawful orders of the court appointing amicus. If it is not possible for the court to otherwise ensure a fair hearing absent the appointment of amicus and Ontario fails to provide amicus that can fulfill the role identified by the court, Ontario accepts that a conditional stay of proceedings may be necessary. Second, the Attorney General for Ontario has always assisted the court in obtaining amicus where the court has concluded it was necessary – in many cases without the court setting rates.
46. One illustration of this involves appeals to the Superior Court from decisions of the Consent and Capacity Board. The Court had identified a problem with these appeals moving forward in a timely way. Ontario worked with the Court and established a process, through Legal Aid Ontario, to identify counsel who will accept amicus appointments to facilitate these cases proceeding. This was done without the Court making any orders as to rates.47 The process followed by the Attorney General in assisting the court in criminal cases involving amicus is illustrated by R v. Cairenius.48 The court identifies the need for amicus, the role that amicus will play and any particular qualifications that are needed. In accordance with the Ministry of the Attorney General – Legal Aid Ontario Protocol for Management of Court-Ordered Publicly- Funded Counsel49, the local crown attorney advises the Attorney General of the need for amicus, the Attorney General contacts LAO, and LAO identifies counsel to assist the court and manages the payment of public funds to amicus in accordance with the principles laid out by the legislature in the Legal Aid Services Act, 1998. If the court is not satisfied with the counsel
46 R. v. Imona-Russel, 2011 ONCA 303 at paras. 45-46, A.R., Tab 10, pp. 78-79 47 Van Burkem v. Geageam, 2011 ONSC 2135 (unreported), A.B.A., Tab 46, pp. 319-320; Conway v. Darby, 2011 ONSC 2134 (unreported), A.B.A., Tab 10, pp. 79-80; Cavalier v. Ramshaw, 2010 ONSC 5402, A.B.A., Tab 7, pp. 60-71 48 R v. Cairenius, [2008] O.J. No. 2323 (S.C.J.) at paras. 113-114, A.B.A., Tab 23, pp. 161-162 49 Ministry of the Attorney General – Legal Aid Ontario Protocol for Management of Court-Ordered Publicly-Funded Counsel as cited at paras. 19-20 of R v. Cairenius, [2008] O.J. No. 2323 (S.C.J.), A.B.A., Tab 23, pp. 163-164 16
identified by LAO, the court can issue a conditional stay of the proceedings until satisfactory counsel is identified. There is no evidence that the Attorney General has ever failed to provide amicus in any proceeding. This process ensures that the needs of the court are met and does not require the court to make a funding order.
47. Ontario submits that the Legislature has the exclusive authority to allocate public monies and that the Court of Appeal erred in finding that the court has the inherent jurisdiction to do so. This finding by the Court of Appeal is inconsistent with established constitutional principles, statutory authority, and existing case law.
QUESTION 1B: Statutory Authority - did the Court of Appeal err in finding that the courts below had the statutory authority to order Ontario to use public money to fund amicus in the face of the legislature’s exclusive jurisdiction to disburse public funds?
48. The Court of Appeal relied on s.22 of the PACA and s.13 of the FAA for the proposition that, "[T]he Legislature has authorized the payment by the Crown of amounts ordered under properly made court orders." The Court of Appeal’s conclusion is unsupported by history, law, policy or evidence.50
49. Ontario submits that the Court of Appeal erred and adopted an erroneous interpretation of the general statutory provisions under the PACA and FAA. The provisions are procedural in nature51 and allow the government to issue payment, without a specific allocation by the Legislature, where there is a valid court order made within the court's existing jurisdiction. They do not confer an independent jurisdiction on the court to make funding orders.
50. Section 22 of the PACA provides that:
The Minister of Finance shall pay out of the Consolidated Revenue Fund the amount payable by the Crown,
50 R. v. Imona-Russel, 2011 ONCA 303 at paras. 50-52, A.R., Tab 10, pp. 81-82 51 See Hagwiglet Village v. Canada, 2009 FC 900 (T.D.) at para. 5, A.B.A., Tab 11, pp. 82-83 where the Court interpreted section 30 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, which is equivalent to section 22 of PACA: “The purpose of s. 30 is to create a process for payment of a judgment as an alternative to execution which cannot be had against the Crown.” 17
(a) under an order of a court that is final and not subject to appeal…52
51. Section 13 of the Financial Administration Act provides that if public money is appropriated by an Act or directed by a judgment of a court to be paid by the Crown, the mechanism for payment is a warrant of the Lieutenant Governor directed to the Minister of Finance, out of the Consolidated Revenue Fund.53
52. Neither section makes any reference to providing the court with the underlying jurisdiction to make a funding order absent the pre-existing authority to do so. The interpretation adopted by the Court of Appeal would lead to an unprecedented abrogation of the Legislature's control over the spending of public monies. The suggestion that the Legislature would grant the courts, an unelected body without direct accountability to the public or the Legislature, an unlimited jurisdiction to order the spending of public monies through this general language is unsupported by history, law, policy or evidence.
53. Section 22 of the PACA was first introduced as s.25 in 1952.54 Section 13 of the FAA was first introduced as s. 8 in 1907.55 Outside of these counsel funding cases, Ontario has been unable to locate any cases which interpret s.22 of PACA,56 equivalent statutes in other Canadian jurisdictions,57 or s.13 of the FAA,58 so as to grant courts this jurisdiction. There are also no
52 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 22, Part VII 53 Financial Administration Act, R.S.O., 1990, c. F.12, s. 13, Part VII 54 Act respecting Proceedings Against the Crown, S.O. 1952 c. 78, s. 25 (Bill 127), A.B.A., Tab 48, p. 331 55 An Act to amend The Act respecting the Consolidated Revenue Fund and the revenue derived from Legal Proceedings, S.O. 1907 c. 8 s. 1, A.B.A., Tab 49, p. 333 56 See Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 22, Part VII; Proceedings Against the Crown Act, R.S.O. 1980, c. 393, s. 26, A.B.A., Tab 74, pp. 451-452; Proceedings Against the Crown Act, R.S.O. 1970, c. 365, s. 26, A.B.A., Tab 73, p. 449; Proceedings Against the Crown Act, 1962-1963, S.O. 1962-63, c. 109, s. 25, A.B.A., Tab 72, p. 447; Act respecting Proceedings Against the Crown, S.O. 1952 c. 78, s. 25 (Bill 127), A.B.A., Tab 48, p. 331 57 Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 s. 30, A.B.A., Tab 58, p. 353; Proceedings Against the Crown Act, R.S.A. 2000, c. P-25, s. 24, A.B.A., Tab 68, p. 440; Crown Proceeding Act, R.S.B.C. 1996, c. 89, s. 13, A.B.A., Tab 59, p. 354; Proceedings Against the Crown Act, C.C.S.M. c. P.140, ss. 14(1), 18, A.B.A., Tab 67, p. 437; Proceedings Against the Crown Act, R.S.N.L. 1990, c. P-26, ss. 23(1), 23(4), 26, A.B.A., Tab 70, p. 444; Proceedings Against the Crown Act, R.S.N.B. 1973, c. P-18, ss. 17(1),(3), 20, A.B.A., Tab 69, pp. 442-443; Proceedings against the Crown Act, R.S.N.S. 1989, c. 360, ss. 20(1),(3), 24, A.B.A., Tab 71, p. 445; Crown Proceedings Act, R.S.P.E.I. 1988, c. C-32, ss. 17(1),(3), A.B.A., Tab 60, p. 355; Code of Civil Procedure, R.S.Q., c. C- 25, s. 94.10, A.B.A., Tab 50, p. 334; Proceedings Against the Crown Act, R.S.S. 1978, c. P-27, ss. 19(1),(4), 21, A.B.A., Tab 75, pp. 454-455 58 Financial Administration Act, R.S.O. 1990, c. F12, s. 13, Part VII; Financial Administration Act, R.S.O. 1980, c. 161, s. 12, A.B.A., Tab 64, p. 363; Financial Administration Act, R.S.O. 1970, c. 166, s. 23, A.B.A., Tab 63, p. 18
Hansard references with respect to either s.22 of the PACA or s.13 of the FAA (or predecessor sections).59 If the intention of these sections was to create such a significant change in the jurisdiction of the courts to control public monies it would be reasonable to expect the court to have relied on these sections in the past and for there to have been debate in the Legislature; yet neither exists.
54. The absence of any previous judicial interpretation or legislative commentary is particularly significant given the fundamental nature of the control over public spending. Had the Legislature intended to abrogate its fundamental and exclusive constitutional authority over public spending, specifically enshrined in s. 11.1 of the FAA, it could and likely would have stated so expressly in the legislation.
55. In Steele Ford & Newton the House of Lords considers the application of Auckland Harbour when interpreting legislation involving the spending of public monies. The House of Lords held that Parliament has always made specific provision as to the power to order costs out of the public purse where it intended that the courts should have such power. Like Auckland Harbour, it found that “as to necessary implication, orders out of public funds are illegal unless authorized by statute” and held: Money has to be provided by Parliament to meet any payments ordered to be made out of central funds, and, in the absence of a specific power to order costs out of central funds, it cannot be inferred that Parliament has set aside money to meet any orders for costs out of central funds… “Central funds” is shorthand for “payment of costs by the Crown”…60
56. The House of Lords also stated: The rule of general application which limits the court's power to read into legislation words which the draftsman has not used is, even in today's climate of purposive construction, still an important rule which cannot be disregarded. "It is
361; Financial Administration Act, R.S.O. 1960, c. 142, s. 31, A.B.A., Tab 62, p. 359; Financial Administration Act, 1954, S.O. 1954, c. 30, s. 32, A.B.A., Tab 61, p. 357; Consolidated Revenue Fund Act, R.S.O. 1950, c. 64, s. 5, A.B.A., Tab 54, p. 343; Consolidated Revenue Fund Act, R.S.O. 1937, c. 21, s. 5, A.B.A., Tab 53, p. 340; Consolidated Revenue Fund Act, R.S.O. 1927, c. 22, s. 5, A.B.A., Tab 52, p. 338; Consolidated Revenue Fund Act, R.S.O. 1914, c. 20, s. 6, A.B.A., Tab 51, p. 336; Consolidated Revenue Fund Act, S.O. 1908, c. 10, s. 6, A.B.A., Tab 55, p. 345; An Act to amend The Act respecting the Consolidated Revenue Fund and the revenue derived from Legal Proceedings, S.O. 1907 c. 8 s. 1, A.B.A., Tab 49, p. 333 59 Second Reading of Bill No 127, An Act respecting Proceedings Against the Crown, First Session of the Twenty- Fourth Legislature of the Province of Ontario, Vol. 33, Monday April 7, 1952, p. C-5, A.B.A., Tab 76, pp. 457-465 60 Steele Ford & Newton, [1994] 1 A.C. 22 (H.L.) at 25 and 26, A.B.A, Tab 43, p. 304A-304B 19
a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do:" Thompson v. Goold & Co. [1910] A.C. 409, 420, per Lord Mersey. "We are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself:" Vickers, Sons & Maxim Ltd. v. Evans [1910] A.C. 444, 445, per Lord Loreburn L.C. But still more important, in the present context, is the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over both the levying and the expenditure of the public revenue. It is trite law that nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of clear statutory authority for public expenditure.61
57. Finally, the House of Lords further opined:
The courts must always resist the temptation to engage, under the guise of statutory interpretation, in what is really judicial legislation, but this is particularly important in a sensitive constitutional area […] where we should be scrupulous to avoid trespassing on parliamentary ground. I would hold that jurisdiction to order payment of costs out of central funds cannot be held to have been conferred by implication on the courts by any of the statutory provisions which I have examined. Indeed, I find it difficult to visualise any statutory context in which such a jurisdiction could be conferred by anything less than clear express terms.62
58. In a decision where counsel was requesting that the court set the rate of compensation for a 486.3 appointment of counsel to conduct the cross-examination of a vulnerable witness, Justice Kane of the Ontario Superior Court of Justice made similar comments:
While recognizing that the court has jurisdiction to control its process and proceedings including the granting of a stay of proceedings in order to protect citizens rights and ensure a fair trial, the power to control or administer legal proceedings does not include the jurisdiction to authorize and direct the expenditure of public monies. Surely, by the year 2010, such fundamental authority would be confirmed or reflected in legislation especially now when the demands on public funds frequently exceed the capacity and therefore priorities established by Parliament and the Legislatures.63
59. Moreover, courts have found in a number of cases that they lack the jurisdiction to order the Crown to spend public monies in a particular way. These decisions are not specifically in
61 Steele Ford & Newton, [1994] 1 A.C. 22 (H.L.) at 33-37, A.B.A, Tab 43, pp. 305-309 62 Steele Ford & Newton, [1994] 1 A.C. 22 (H.L.) at 41, A.B.A., Tab 43, p. 309A 63 R. v. Dallaire, 2010 ONSC 715, A.B.A., Tab 27, pp. 184-194 20 respect of public funding of court appointed counsel and do not refer specifically to s.22 of the PACA or s.13 of the FAA, but they implicitly reject the approach taken by the Court of Appeal. If s.22 of the PACA and s.13 of the FAA are a source of court jurisdiction to order spending by the Crown then the court could have ordered funding on that basis in all of these other cases but in none did the court do so.64
60. Ontario submits that the Court of Appeal's broad articulation of the court’s inherent jurisdiction in this context assumes control over the allocation of public funds which is a matter entrusted to the Legislature.65 When this broad articulation is applied to the universe of cases in which a court may decide to make orders for the spending of public funds, it could undermine the ability of the government and the Legislature to control public spending. Even at its most narrow, dealing only with compensation for counsel in criminal proceedings, there is a significant impact on the ability of the government to decide upon and deliver other public services if faced with a significant and discretionary spending authority on the part of the courts.66 These are difficult choices; they are entrusted to the legislative branch which is directly and properly accountable to the public for its allocation of public monies.
61. This decision could also be applied beyond the criminal context. The potential impact of the decision can be illustrated by examples in civil proceedings where litigants have made
64 Metropolitan General Hospital and Minister of Health, [1979] O.J. No. 4344 (H.C.J.) at para. 9, A.B.A., Tab 17, p. 119; The Queen v The Lords Commissioners of the Treasury, [1872] L.R. 7 Q.B. 387 at pp. 389-390, A.B.A., Tab 44, pp. 312-313; Minister of Finance of British Columbia v. The King, [1935] S.C.R. 278, A.B.A., Tab 18, pp. 120- 129; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2011 BCSC 1219 at paras. 31- 33, A.B.A., Tab 8, p. 76 65 See especially Legal Aid Board v. State and Others, [2011] 2 L.R. 635 (South Africa S.C.A.) at para. 45, A.B.A., Tab 15, pp. 106-107: We need hardly to remind ourselves that that courts do not control the public purse, nor do they have the power to conscript the legal profession to render services without reward. It is for the other arms of government to ensure that adequate provision is made for legal representation at state expense. Here they have chosen to do so through the LAB. Demands other than legal aid on the public purse may limit the availability of funds. Courts should be slow to attribute superior wisdom to themselves in respect of matters entrusted to other branches of government. As O'Regan J puts it in Bato Star 2004 (4) SA 490 (CC) at [48]: 'A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the Courts.' 66 R. v. Mark Pickard, transcript of oral reasons of Justice Waugh (O.C.J.) dated June 28, 2012, A.B.A., Tab 32, pp. 211-227 (enhanced rate ordered for the appointment of counsel pursuant to section 486.3 of the Criminal Code, R.S.C. 1985, c. C-46, s. 486.3, A.B.A., Tab 57, p. 348); R. v. Gomez, 2012 ONSC 3978, A.B.A., Tab 28, pp. 195- 199 (enhanced rate ordered for appointment of counsel to a witness in a third party records application) 21
applications to the court for state-funded counsel. These cases arise both where the Crown is a litigant and where the litigants are private parties. Appellate courts in other jurisdictions have not concluded courts have the authority in these scenarios to order state-funded counsel where Charter rights are not at risk. If the Ontario Court of Appeal decision in this case is correct, however, there is no logical basis in Ontario to prevent courts from making orders requiring the government to fund amicus counsel in guardianship proceedings if a judge considers it is “necessary… to ensure that justice can be done.” However, this would be contrary to well established law in many provinces that the courts do not set the rate for amicus counsel in guardianship proceedings.67
62. A further illustration of this same risk can be found in Perino v. Perino, a decision of the Ontario Superior Court of Justice. In that case, the Court ordered the Crown, which was not a party or involved in the proceedings in any way, to pay $275 per hour for counsel whom the Court had chosen to represent an adult with autistic tendencies in a custody dispute between her parents.68 More decisions of this sort can be expected in light of the Court of Appeal's decision that all courts have the inherent jurisdiction and statutory authority to order the government to fund amicus at rates set by the courts.
63. Functional equivalents of s. 22 of the PACA have been enacted by the federal Parliament and by every other provincial legislature in Canada. Thus, the power to order the expenditure of public funds that the Court of Appeal held is authorized by s. 22 of the PACA is available to every court in Canada.69
67 Sahyoun (Committee of) v. Ho, 2011 BCSC 567 at paras. 16-28, A. B.A., Tab 41, pp. 288-290; Holland (Guardian ad Litem of) v. Marshall, 2010 BCCA 164 at paras. 9-17, A.B.A., Tab 13, pp. 88-91; J.R. v. New Brunswick (Minister of Social Development), 2010 NBCA 81 at para. 21, A.B.A., Tab 14, p. 95 68 Perino v. Perino, [2009] O.J. No. 5846 (S.C.J.) at paras. 30-34, A.B.A., Tab 20, pp. 144-145 69 Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 s. 30, A.B.A., Tab 58, p. 353; Proceedings Against the Crown Act, R.S.A. 2000, c. P-25, s. 24, A.B.A., Tab 68, p. 440; Crown Proceeding Act, R.S.B.C. 1996, c. 89, s. 13, A.B.A., Tab 59, p. 354; Proceedings Against the Crown Act, C.C.S.M. c. P.140, ss. 14(1), 18, A.B.A., Tab 67, p. 437; Proceedings Against the Crown Act, R.S.N.L. 1990, c. P-26, ss. 23(1), 23(4), 26, A.B.A., Tab 70, p. 444; Proceedings Against the Crown Act, R.S.N.B. 1973, c. P-18, ss. 17(1),(3), 20, A.B.A., Tab 69, pp. 442-443; Proceedings against the Crown Act, R.S.N.S. 1989, c. 360, ss. 20(1),(3), 24, A.B.A., Tab 71, p. 445; Crown Proceedings Act, R.S.P.E.I. 1988, c. C-32, ss. 17(1),(3), A.B.A., Tab 60, p. 355; Code of Civil Procedure, R.S.Q., c. C- 25, s. 94.10, A.B.A., Tab 50, p. 334; Proceedings Against the Crown Act, R.S.S. 1978, c. P-27, ss. 19(1),(4), 21, A.B.A., Tab 75, pp. 454-455 22
64. The necessary implication of the Court's statutory analysis is that courts in every jurisdiction in Canada have jurisdiction to order the spending of public funds under their power to manage their own processes. This power is not limited to amicus appointments, or indeed to any court-ordered appointment of counsel. Rather, the Court of Appeal’s decision, read literally, allows a court to direct the spending of public funds in any circumstance in which a court considers it appropriate. Unlike the situation involving a Charter right, in these cases there is no opportunity for the government to assert that the choices it makes with respect to funding are reasonable and demonstrably justified in a democratic society, no opportunity for the court to test the government’s claims, and no consideration of following the least restrictive approach.
65. The interpretation of the PACA offered by the Court of Appeal is also inconsistent with a purposive reading of Crown proceedings legislation in Canada. The purpose of Crown liability legislation is to displace the common law immunity to civil liability historically enjoyed by the Crown. Such legislation is intended to alter the Crown’s traditional status to one more akin to that of a private litigant. The Court of Appeal in its decision offers a broad and sweeping interpretation of this legislation that goes well beyond the focus of the legislation and drastically expands the jurisdiction of the court to order the disbursements of public funds.70
66. Ontario submits that the more reasonable interpretation is that the sections are intended to provide a free standing appropriation which allows the government to comply with otherwise valid court orders made within the court's existing jurisdiction. For example, the PACA permits Ontario to be sued in civil proceedings. Where a litigant successfully sues Ontario they are entitled to their damages as well as any costs ordered by the court. Section 22 of the PACA permits these damages and costs to be paid by Ontario without a legislative appropriation. Absent these sections, the Legislature would have to sit and pass a separate appropriation each and every time a court makes a damages order or costs order against the Crown in civil proceedings. Such an approach would be unworkable given the volume of civil cases involving the Crown. Section 13 of the FAA provides a similar authority in situations where there is no civil proceeding under the PACA and s.22 of the PACA does not apply.
70 Hogg & Monahan, Liability of the Crown, 3rd ed. (Scarborough, Ont: Carswell, 1997) at p. 9, A.B.A., Tab 12, p. 85 23
67. Ontario respectfully submits that the Court of Appeal erred in concluding that s.22 of the PACA and s.13 of the FAA grant the court the jurisdiction to make orders compelling the Crown to spend public monies as directed by the court. In the absence of inherent or statutory jurisdiction Ontario submits that the decision of the Court of Appeal should be overturned.
QUESTION 2: Least Restrictive Approach - in the alternative, did the Court of Appeal err in finding that there was no requirement for the court take the least restrictive approach when it has ordered that amicus is necessary?
68. The Court of Appeal concluded that when appointing amicus the court could immediately set rates of compensation and compel the Crown to pay. The Court of Appeal found that there was no requirement on the courts to adopt the least restrictive approach, which would grant the Crown the greatest flexibility, to ensure a fair trial:
We agree that the policy reasons set out by the Quebec Court of Appeal signal the need for caution in making orders that have the effect of expending public money. However, a temporary stay of proceedings was not the appropriate remedy in these cases. Nor does the Attorney General argue that this should have been the result, not having himself initiated a stay. Amicus were appointed so that the cases could proceed. It hardly seems logical for the court to appoint amicus and then stay the proceedings. All parties shared an interest in these cases going forward. Moreover, unlike R.C., these cases do not engage the Charter. They do not raise the spectre of the courts telling the state to spend public funds to fulfil constitutional rights. They are about the courts exercising their inherent jurisdiction to see that justice is done.71
69. Ontario submits that even if the court has the inherent or statutory authority to set the rate of compensation for amicus and compel the Crown to allocate funds in a particular way, this discretionary authority should only be exercised if there is no other way to ensure the common goal of a fair trial. The Court of Appeal erred in disregarding the least restrictive approach, one that allows the government as much freedom to act as possible without jeopardizing the fairness of a legal proceeding. In each of the cases below there were other alternative options available to the court, including granting a stay of the proceedings conditional on the court being satisfied that competent amicus is available to perform the role set by the court.
71 R. v. Imona-Russel, 2011 ONCA 303 at para. 54, A.R., Tab 10, p. 32 24
70. In Charter cases where a court appoints counsel, the courts should adopt a remedial approach that gives the Crown the greatest range of flexibility in meeting its Charter obligations.72 This principle, the least restrictive approach, ensures respect for the different institutional capacity of legislatures and courts. For example, in Rowbotham cases this would generally involve the court indicating that unless the accused is provided with counsel the court will order a conditional stay of the proceedings. This allows the Attorney General to determine whether and to what extent public funds will be spent in order to comply with a court’s order. It also ensures that public funds are spent in a manner that is transparent and accountable to the public.73
71. Ontario submits that the role of amicus in the three cases below was essentially the same as a defence counsel acting under a Rowbotham order to protect the fair trial interests of the accused. Ontario asserts that where effectively granting Charter relief (despite the absence of a violation of accused rights) the court should equally adopt the least restrictive approach and grant the state the greatest flexibility in complying with its fundamental obligation to ensure a fair trial. The Quebec Court of Appeal analyzed the role of the courts in allocating public funds in criminal proceedings in the case of Quebec v. R.C. and determined that there were several reasons why the courts must not dictate the compensation of court-appointed counsel:
…it is not up to the courts, as we noted earlier, to interfere in the allocation by the state of its limited resources.
There are several reasons that justify a finding that the court must not dictate to the government how it should fulfil its constitutional duty and must not indicate the sums that it must spend in order to guarantee this right: (1) the courts do not have institutional jurisdiction to interfere in the allocation of public funds, which explains the flexibility that the government must retain, (2) in most cases, the determination of the amount of the fees would be a distorted means of circumventing the LAA [the Quebec legal aid scheme], (3) in terms of constitutional relief, the order must not encroach upon the legislative area more than is necessary and it must not accordingly be the least intrusive measure, and
72 Schachter v. Canada, [1992] 2 S.C.R. 679 at paras. 57-63, A.B.A., Tab 42, pp. 298-300 ; Roach, Constitutional Remedies (looseleaf), (Toronto, Ont: Thomson Reuters, 2011), A.B.A., Tab 9, p. 78: One of the remedial purposes of constitutional remedies is to interfere as little as possible with the exercise of legislative and executive responsibilities. 73 Attorney General of Quebec v. R.C. [2003] Q.J. No. 7541 (C.A.) at paras. 164-165, A.B.A., Tab 1, p. 5; R v. Peterman, [2004] O.J. No. 1758 (C.A.) at para. 41, A.B.A., Tab 36, p. 244; R v. Cairenius, [2008] O.J. No. 2323 (S.C.J.) at para. 39, A.B.A., Tab 23, p. 160; R v Caron, 2011 SCC 5 at para. 6, A.B.A., Tab 24, p. 171 25
(4) finally, since the state retains authority to decide whether or not to continue the proceedings, it is reasonable for the state to be left with room for manoeuvre in order to fulfil its constitutional duty to provide the services of counsel paid from public moneys.74
72. The Court went on to conclude at paragraph 177 that “The court does not have jurisdiction to set the amount of the fees it considers reasonable; it is not the task of the court to interfere in the allocation of the limited resources of the state.”75
73. In R. v. Peterman the Ontario Court of Appeal adopted the reasoning of the Quebec Court of Appeal in Quebec v. R.C.:
I do, however, wish to deal with two further matters. The first issue is the propriety of making an order against Legal Aid Ontario. Even if a case had been made out for a Fisher-type order, the order should have been made against the Crown, not Legal Aid Ontario. It would then be for the Attorney General of Ontario to determine how to respond to the order. He may have been able to make some arrangement with Legal Aid Ontario. But that was a matter for the Attorney General and the Legal Aid authorities. It was not an issue for the criminal court. See Québec (Procureurgénéral) v. C. (R.), at para. 177. [Emphasis added]76
74. In R. v. Cairenius, the Superior Court of Justice found that if there was a Charter component to the appointment of amicus, then on the basis of the authorities noted earlier, there would be no jurisdiction in courts to set fees for amicus. Justice Durno stated that there is no fixed definition of the role of amicus, and described the role of amicus as a continuum: on one end, amicus essentially performs the role of defence counsel; on the other, amicus is appointed to represent and make submissions on behalf of unrepresented interests before the courts:
I am persuaded on the basis of these authorities that, in Ontario, a judge has no jurisdiction to set fees in criminal cases after a finding that the accused person requires counsel to have a fair trial within the meaning of s. 7 of the Charter. The court determines that, unless the state provides counsel, the accused cannot have a fair trial, and would stay the charges if counsel is not provided. However, how that counsel is retained, and at what rate, is not a matter for the courts. If the government cannot reach an agreement with counsel, the charge(s) is stayed and the proceeding ends. There appears to be no principled reason why that same criteria should not apply to the appointment of counsel under s. 486.3 of the
74 Attorney General of Quebec v. R.C, [2003] Q.J. No. 7541 (C.A.) at paras. 164-165, A.B.A., Tab 1, p. 5 75 Attorney General of Quebec v. R.C, [2003] Q.J. No. 7541 (C.A.) at paras. 164-165, A.B.A., Tab 1, p. 5 76 R v. Peterman, [2004] O.J. No. 1758 (C.A.) at para. 41, A.B.A., Tab 36, p. 244 26
Criminal Code. While it is not a constitutional obligation, it a legislated mandate given to the Crown in a criminal prosecution.
Similarly, where a Fisher or Fisher-type order is made, a court cannot set the fees to be paid. The court makes an order, including the specifics under which the accused must be represented, or the proceedings are stayed. It is for the Attorney General, not the courts, to determine how that counsel will be retained, and at what rates. If there is no counsel provided, the proceedings are stayed or remain stayed. [Emphasis added]77
75. In R. v. Aziga, where the accused was charged with first degree murder, an application for an increase in rates and hours by counsel being paid at legal aid rates on a Rowbotham order, Justice Lofchik of the Ontario Superior Court followed Attorney General of Quebec v. R.C., R. v. Peterman, and R. v. Cairenius to conclude that “this Court does not have jurisdiction to fix the rates at which Counsel are paid.”78
76. Although these cases arise in the context of the appointment of defence counsel pursuant to a Rowbotham or Fisher application, the same principles apply equally to the appointment of amicus. Both types of orders involve the appointment of counsel by the court at public expense. Accordingly, where counsel is appointed under the Charter for the purpose of ensuring a fair trial, either by way of an amicus order or through a Rowbotham or Fisher application79, the court ought to adopt the least restrictive approach. Under it, a court should recognize that it ought not set the rate of compensation but rather, should leave responsibility for assessing the accounts of amicus with Legal Aid Ontario.
77. This Court has also endorsed this approach in non-criminal cases by ordering that publicly funded counsel was required where an individual’s Charter right was at risk. At issue in
77 R v. Cairenius, [2008] O.J. No. 2323 (S.C.J.) at para. 39, A.B.A., Tab 23, p. 160 78 R. v. Aziga, [2008] O.J. No. 3083 (S.C.J) at para. 4, A.B.A., Tab 21, p. 147 79 Amicus appointments necessary to protect fair trial rights should only be made in rare and unique circumstances where an accused wishes to be self-represented or cannot maintain a solicitor-client relationship and the court determines that counsel is necessary to ensure the fairness of the proceeding, as was the case for three of the orders under appeal: Imona-Russel #1, Whalen and Dadshani. Where an accused wishes to be represented by counsel and is seeking an order for the state to fund counsel, the determination of whether counsel is necessary to ensure a fair trial should be made by way of a Rowbotham application where an accused files evidence and the court applies the three well-established criteria set out in R. v. Rowbotham and applied by courts in all provinces for the appointment of state-funded counsel: (1) the accused has been denied legal aid and exhausted all appeals; (2) the accused is indigent and cannot afford to retain counsel; (3) the applicant faces serious consequences, and the case is too complex for the accused to defend themselves, bearing in mind both the complexity of the case itself and the abilities of the accused. R. v. Rowbotham, [1988] O.J. No. 271 (C.A.), A.B.A., Tab 38, pp. 256-267 27
New Brunswick v. G.(J.) was whether or not a child should be removed from the mother's care. This Court found that the less restrictive approach of ordering a stay was not available (since that would not protect the interests of the child) but even then the Court did not set the rate of compensation for counsel. As this Court stated:
In attributing the failure to provide state-funded counsel to the government's administration of the Domestic Legal Aid program, I do not mean to suggest that the Domestic Legal Aid program as it stands is the only way the government could have fulfilled its constitutional obligation in this case. The government has wide latitude in discharging its constitutional duty to provide state-funded counsel in proceedings where that duty arises. It could have done so in any number of ways -- under the Legal Aid Act, the Family Services Act, or a myriad of other legislation or programs. This Court need not and should not tell the Government of New Brunswick what specific delivery system should have been employed. [Emphasis added]80
78. Recently in 2011, the Superior Court of Ontario applied the decision in J.G. in United States of America v. Palulski. The Court found that it was only because of the unique circumstances (where a stay would not protect the safety of the children) that the remedy of directly ordering funding was an option. The Court also adopted the decision of the Ontario Court of Appeal in Peterman that an order directing the state to pay for a specific legal counsel should only be granted in very exceptional or unique circumstances.81
79. Contrary to all of these authorities, the Court of Appeal in this case rejected the “least restrictive” approach. It determined the specific legal service delivery system to be used, as well as the amount the province was required to pay. The Court reasoned that the cases on appeal did not engage the Charter and as a result they did not raise the “spectre” of the courts telling the state to spend public funds to fulfil constitutional rights. However, the Court provided no further analysis to explain why the same “spectre” does not haunt court orders for funding under inherent jurisdiction.82
80. The purpose of the least restrictive approach is to grant the Attorney General the greatest flexibility in how it responds to the decision of the court that counsel is necessary. It anticipated
80 New Brunswick v. G.(J.), [1999] 3 S.C.R. 46 at para. 92, A.B.A., Tab 19, p. 137 81 United States of America v. Pakulski, 2011 ONSC 3489 at para. 23, A.B.A., Tab 45, p. 318 82 R. v. Imona-Russel, 2011 ONCA 303 at para. 54, A.R., Tab 10, p. 85 28
and justifies a multi-step process. Once the court reaches the conclusion that counsel is needed, the court determines the role and qualifications of amicus and then grants the Attorney General flexibility in how this need is met. Once the Attorney General responds the court decides if the response is satisfactory or if a conditional stay should be granted pending a further, and better, response. None of this happened in these cases and will not happen in the future in light of the Court of Appeal’s decision.
81. The response suggested by the Court of Appeal jumps over the careful process explained above and in so doing it eliminates any flexibility in how the Attorney General responds. The Court of Appeal found that “a temporary stay of proceedings was not the appropriate remedy … Amicus were appointed so that the cases could proceed. It hardly seems logical for the court to appoint amicus and then stay the proceedings.” With respect, the multi-step process described above would not require the court to contemplate a stay of proceedings after the court’s decision to appoint amicus. Rather, a conditional stay would only be ordered where the Attorney General fails to provide amicus in circumstances where the court has determined amicus is necessary to ensure a fair trial. The ultimate power rests with the court to order a conditional stay but respect for the other branches is best achieved and without any jeopardy to a fair trial, by allowing the Attorney General to determine what rates it is able to pay.
82. There would be no rationale for restricting the Court of Appeal’s single step approach to amicus appointments. For instance, the same logic would apply to any determination by the court that Rowbotham counsel is necessary. Once such a determination is made it would not be logical (based on the Court of Appeal's reasoning) for the court to provide the Crown with time to respond or to grant a conditional stay if the Crowns response is unsatisfactory - given that the court would have already determined that the appointment of Rowbotham counsel was necessary. But such an approach runs contrary to all of the established jurisprudence on the right to state- funded counsel.
83. The Court of Appeal offered no principled basis for deciding that this least restrictive approach applies to Charter cases, but not to cases involving inherent jurisdiction. The Court of Appeal’s decision signals to lower courts that it is unnecessary to consider an approach that is less restrictive on the Attorney General. It does not identify any criteria that isolate the 29
circumstances under which the less restrictive approach can be abandoned; it simply finds it does not apply. The effect of this holding is to further undermine the legislature's ability to control and plan the expenditure of public funds. Ontario submits that this Court should direct that the least restrictive approach be adopted by the courts when appointing amicus and considering ordering the spending of public funds.
84. In addition to being inconsistent with the approach to ordering funding in other cases involving court-appointed counsel, the decision of the Court of Appeal undermines the existing legal aid regime. The decision effectively creates an alternative court-ordered public funding scheme with significantly higher rates of compensation and not all of the statutory controls, transparency or public accountability under the Legal Aid Services Act, 1998 or in Charter jurisprudence.
85. Under the Legal Aid Services Act, 1998 and prior case law (such as Rowbotham and Peterman) there was no right to government funded counsel of choice, and no entitlement for counsel to receive higher than legal aid rates. There was management by Legal Aid Ontario (LAO) of accounts, which included applying a “reasonable client of modest means” test to steps in the proceedings.83
86. The Court of Appeal has endorsed a parallel system for the appointment of amicus which effectively: (1) provides the accused with counsel of choice without any limitations84; (2) provides counsel with significantly higher rates of pay beyond the enhanced rates provided by LAO for complex cases; and (3) permits replacing counsel funded by LAO or the Attorney General by way of a Rowbotham order, with private sector counsel appointed by the court, and without any requirement of accounting to the public.
87. Other courts have recognized the economic danger of appointing defence counsel at higher than legal aid rates. In R. v. D.P.F. the Newfoundland Supreme Court reviewed the jurisprudence and expresses concern with the courts setting different rates:
83 R. v. Peterman, [2004] O.J. No. 1758 (C.A.) at paras. 21-22 and 27-30, A.B.A., Tab 36, pp. 241-243; R. v. Rowbotham, [1988] O.J. No. 271 (C.A.), A.B.A., Tab 38, pp. 256-267; Legal Aid Services Act , 1998, O. Reg. 107/99 General, ss.1-7, A.B.A., Tab 66, pp. 428-435 84 R. v. Peterman, [2004] O.J. No. 1758 (C.A.) at paras. 27-30, A.B.A., Tab 36, pp. 242-243 30
I approach with wariness the prospect of ordering the payment of counsel other than strictly in accordance with the Legal Aid scheme. The case law is clear: in general, provincial legal aid schemes accord with the Charter and fulfill the requirement at common law for the provision of counsel where this is necessary for a fair trial. [Emphasis added]85
88. The Ontario Superior Court has also recognized the need for consistency with the legal aid scheme, even when appointing criminal counsel in other contexts. In R. v. Magda the Court found as follows:
Defence counsel have requested that I order that the Province provide funding at hourly rates that are much higher than the Legal Aid Ontario rates. I decline to do so. I am very cognizant of the fact that the Ontario Legal Aid Plan is a program created and funded by the Province. One of its purposes is to provide for an orderly, financially responsible means of funding counsel for those who cannot afford to retain counsel privately. If I were to order that counsel for these accused be paid at hourly rates that are substantially higher than the Legal Aid rates, then I would be undermining the integrity of the Legal Aid system in Ontario. There must be a certain consistency in all cases in which funding is provided by the Province for defence counsel. [Emphasis added].86
89. Based on the precedent set by the trial judges in these four decisions, defence counsel can obtain higher than legal aid rates simply by asking the court to appoint counsel as “amicus”– but with a solicitor-client relationship. This also allows an accused to receive state-funded defence counsel even though they have been denied applications for Rowbotham orders. Ontario submits that this creates perverse incentives that are contrary to good public policy.
90. Ontario respectfully submits that even if the court has the inherent or statutory authority to set rates of compensation for amicus and to compel the Crown to spend public monies in a particular way the court should exercise its discretion to adopt the least restrictive approach and grant the Crown the greatest flexibility in how it responds. This is consistent with the decisions in other cases involving public funding of court-appointed counsel and respects the existing legal aid regime.
85 R. v. D.P.F., [2000] N.J. No. 110 (Nfld. S.C.) at para. 46, A.B.A., Tab 26, p. 183 86 R. v. Magda, [2001] O.J. No. 1861 (S.C.J.) at para. 56, A.B.A., Tab 31, p. 210 31
PART IV - SUBMISSIONS CONCERNING COSTS
91. Ontario does not seek any costs with respect to this appeal.
PART V-ORDER SOUGHT
92. Ontario seeks an Order granting its appeal and setting aside the decision of the Court of
Appeal.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
DATED at Toronto, this 20th day ofJuly, 2012
AMENDED at Toronto, this 4th day ofSeptember, 2012
Malliba Wilson Troy Harrison (LSDC No. 233081) (LSDC No. 40867W) - ( --=----.....>..-_---- ~~~ Baaba Forson (LSDC No. 55678C) (LSDC No. 552110)
Ministry ofthe Attorney General Crown Law Office - Civil
Counsel for the Appellant, Her Majesty the Queen 32
PART VI – TABLE OF AUTHORITIES
AUTHORITIES PARAGRAPH
1. Attorney General of Quebec v. R.C, [2003] Q.J. No. 7541 (C.A.) 37, 70, 71, 72
2. Auckland Harbour Board v. The King, [1924] A.C. 318 (P.C.) 4, 21, 24
3. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 42 SCC 71
4. Campbell, Parliamentary Appropriations, HeinOnline - 4 Adel. L. 21 Rev. 145 1971-1972
5. Canada v. Savard, [1996] Y.J. No. 4 (C.A.) 31
6. Canadian Judicial Council, Alternative Models of Court Administration 27, 28 (Ottawa: Her Majesty the Queen in Right of Canada, 2006)
7. Cavalier v. Ramshaw, 2010 ONSC 5402 46
8. Conseil scolaire francophone de la Colombie-Britannique v. British 36, 42, 59 Columbia, 2011 BCSC 1219
9. Roach, Constitutional Remedies (looseleaf), (Toronto, Ont: Thomson 70 Reuters, 2011)
10. Conway v. Darby, 2011 ONSC 2134 (unreported) 46
11. Hagwiglet Village v. Canada, 2009 FC 900 (T.D.) 49
12. Hogg & Monahan, Liability of the Crown, 3rd ed. (Scarborough, Ont: 65 Carswell, 1997)
13. Holland (Guardian ad Litem of) v. Marshall, 2010 BCCA 164 61
14. J.R. v. New Brunswick (Minister of Social Development), 2010 NBCA 61 81
15. Legal Aid Board v. State and Others, [2011] 2 L.R. 635 (South Africa 40, 60 S.C.A.)
16. Little Sisters Book and Art Emporium v. Canada (Commissioner of 42 Customs and Revenue), 2007 SCC 2 33
AUTHORITIES PARAGRAPH
17. Metropolitan General Hospital and Minister of Health, [1979] O.J. No. 59 4344 (H.C.J.)
18. Minister of Finance of British Columbia v. The King, [1935] S.C.R. 59 278
19. New Brunswick v. G.(J.), [1999] 3 S.C.R. 46 42, 77
20. Perino v. Perino, [2009] O.J. No. 5846 (S.C.J.) 62
21. R. v. Aziga, [2008] O.J. No. 3083(S.C.J) 75
22. R. v. Cai, 2002 ABCA 299 30
23. R. v. Cairenius, [2008] O.J. No. 2323 (S.C.J.) [Ministry of the Attorney 46, 70, 74 General – Legal Aid Ontario Protocol for Management of Court- Ordered Publicly-Funded Counsel as cited at para. 19 and 20]
24. R. v. Caron, 2011 SCC 5 42, 70
25. R. v. Cyr, Zvolensky and Qawash, [2009] O.J. No. 5535 (S.C.J.) 39
26. R. v. D.P.F., [2000] N.J. No. 110 (Nfld. S.C.) 2, 87
27. R. v. Dallaire, 2010 ONSC 715 58
28. R. v. Gomez, 2012 ONSC 3978 60
29. R. v. Grant, 2003 MBQB 254 37
30. R. v. Ho, 2003 BCCA 663 30, 32
31. R. v. Magda, [2001] O.J. No. 1861 (S.C.J.) 2, 88
32. R. v. Mark Pickard, transcript of oral reasons of Justice Waugh (O.C.J.) 60 dated June 28, 2012
33. R. v. Martin, 2010 BCCA 526 33
34. R. v. Miner, [1997] B.C.J. No. 625 (C.A.) 35
35. R. v. P.H.L.W., 2004 BCCA 522 35 34
AUTHORITIES PARAGRAPH
36. R. v. Peterman, [2004] O.J. No. 1758 (C.A.) 2, 38, 70, 73, 85, 86
37. R. v. Prosper, [1994] 3 S.C.R. 236 2
38. R. v. Rowbotham, [1988] O.J. No. 271 (C.A.) 38, 76, 85
39. R. v. White, 2010 SCC 59 42
40. Reference re Secession of Quebec, [1998] 2 S.C.R. 217 6
41. Sahyoun (Committee of) v. Ho, 2011 BCSC 567 61
42. Schachter v. Canada, [1992] 2 S.C.R. 679 70
43. Steele Ford & Newton, [1994] 1 A.C. 22 (H.L.) 55, 56, 57
44. The Queen v The Lords Commissioners of the Treasury, [1872] L.R. 7 59 Q.B. 387
45. United States of America v. Pakulski, 2011 ONSC 3489 78
46. Van Burkem v. Geageam, 2011 ONSC 2135 (unreported) 46
47. Ward v. Vancouver (City), 2010 SCC 27 30
35
PART VII – TABLE OF STATUTES & REGULATIONS
STATUTES & REGULATIONS PARAGRAPH
1. Act respecting Proceedings Against the Crown, S.O. 1952 c. 78, s. 25 53 (Bill 127)
2. An Act to amend The Act respecting the Consolidated Revenue Fund 53 and the revenue derived from Legal Proceedings, S.O. 1907 c. 8, s. 1
3. Code of Civil Procedure, R.S.Q., c. C-25, s. 94.10 53, 63
4. Consolidated Revenue Fund Act, R.S.O. 1914, c. 20, s. 6 53
5. Consolidated Revenue Fund Act, R.S.O. 1927, c. 22, s. 5 53
6. Consolidated Revenue Fund Act, R.S.O. 1937, c. 21, s. 5 53
7. Consolidated Revenue Fund Act, R.S.O. 1950, c. 64, s. 5 53
8. Consolidated Revenue Fund Act, S.O. 1908, c. 10, s. 6 53
9. Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 126 21, 25
10. Criminal Code, R.S.C. 1985, c. C-46, ss. 486.3, 684, 694.1 42
11. Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 30 53, 63
12. Crown Proceeding Act, R.S.B.C. 1996, c. 89, s. 13 53, 63
13. Crown Proceedings Act, R.S.P.E.I. 1988, c. C-32, ss. 17(1), 17(3) 53, 63
14. Financial Administration Act, 1954, S.O. 1954, c. 30, s. 32 53
15. Financial Administration Act, R.S.O. 1960, c. 142, s. 31 53
16. Financial Administration Act, R.S.O. 1970, c. 166, s. 23 53
17. Financial Administration Act, R.S.O. 1980, c. 161, s. 12 53
18. Financial Administration Act, R.S.O. 1990, c. F.12, ss. 11.1(1), 13 18, 19, 21, 23, 26, 48, 53, 54, 59, 66, 67 36
STATUTES & REGULATIONS PARAGRAPH
19. Legal Aid Services Act, 1998, S.O. 1998, c. 26 5, 46, 84, 85
20. Legal Aid Services Act, 1998, O. Reg. 107/99 General, ss. 1-7 85
21. Proceedings Against the Crown Act, C.C.S.M. c. P.140, ss. 14(1), 18 53, 63
22. Proceedings Against the Crown Act, R.S.A. 2000, c. P-25, s. 24 53, 63
23. Proceedings Against the Crown Act, R.S.N.B. 1973, c. P-18, ss. 17(1), 53, 63 17(3), 20
24. Proceedings Against the Crown Act, R.S.N.L. 1990, c. P-26, ss. 23(1), 53, 63 23(4), 26
25. Proceedings against the Crown Act, R.S.N.S. 1989, c. 360, ss. 20(1), 53, 63 20(3), 24
26. Proceedings Against the Crown Act, 1962-1963, S.O. 1962-63, c. 109, 53 s. 25
27. Proceedings Against the Crown Act, R.S.O. 1970, c. 365, s. 26 53
28. Proceedings Against the Crown Act, R.S.O. 1980, c. 393, s. 26 53
29. Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 22 19, 23, 48, 50, 53, 59, 63, 66, 67
30. Proceedings Against the Crown Act, R.S.S. 1978, c. P-27, ss. 19(1), 53, 63 19(4), 21
31. Second Reading of Bill No 127, An Act respecting Proceedings 53 Against the Crown, First Session of the Twenty-Fourth Legislature of the Province of Ontario, Vol. 33, Monday April 7, 1952, p. C-5
37
Financial Administration Act
R.S.O. 1990, CHAPTER F.12
Consolidation Period: From June 20, 2012 to the e-Laws currency date. Last amendment: 2012, c. 8, Sched. 14.
PART II DISBURSEMENT OF PUBLIC MONEY Appropriation required 11.1 (1) Money shall not be paid out of the Consolidated Revenue Fund and neither a non-cash expense nor a non-cash investment shall be recognized by the Crown unless the payment or the recognition is authorized by this or another Act of the Legislature. 2009, c. 18, Sched. 12, s. 4.
How public money to be paid in certain circumstances 13. If any public money is appropriated by an Act for any purpose or is directed by the judgment of a court or the award of arbitrators or other lawful authority to be paid by the Crown or the Lieutenant Governor and no other provision is made respecting it, such money is payable under warrant of the Lieutenant Governor, directed to the Minister of Finance, out of the Consolidated Revenue Fund, and all persons entrusted with the expenditure of any such money or a part thereof shall account for it in such manner and form, with such vouchers, at such periods and to such officer as the Minister of Finance may direct. R.S.O. 1990, c. F.12, s. 13; 1994, c. 17, s. 62 (2).
PARTIE II DÉBOURS DE DENIERS PUBLICS
Affectation de crédits obligatoire 11.1 (1) Tout paiement sur le Trésor et toute comptabilisation de frais ou d’éléments hors trésorerie par la Couronne doivent être autorisés par la présente loi ou une autre loi de la Législature. 2009, chap. 18, annexe 12, art. 4.
Paiement des deniers publics en certaines circonstances 13. Lorsque des deniers publics font l’objet d’une affectation de crédits dans une loi à une fin quelconque, ou que la Couronne ou le lieutenant-gouverneur doivent prélever un paiement sur ces deniers afin d’exécuter la décision d’une autorité légalement compétente, notamment le jugement d’un tribunal ou une sentence arbitrale, et qu’aucune autre disposition n’a été prise à cet égard, le paiement est fait sur le Trésor en vertu d’un mandat du lieutenant- gouverneur adressé au ministre des Finances. Les personnes chargées de la dépense de ces deniers publics, en totalité ou en partie, en rendent compte en suivant les directives du ministre des Finances sur la façon de le faire, sur les pièces comptables, sur le fonctionnaire particulier à qui le compte rendu doit être présenté et sur les délais à respecter. L.R.O. 1990, chap. F.12, art. 13; 1994, chap. 17, par. 62 (2).
38
Proceedings Against the Crown Act
R.S.O. 1990, CHAPTER P.27
Consolidation Period: From December 15, 2009 to the e-Laws currency date. Last amendment: 2009, c. 34, Sched. P.
Payment by Crown 22. The Minister of Finance shall pay out of the Consolidated Revenue Fund the amount payable by the Crown, (a) under an order of a court that is final and not subject to appeal; (b) under a settlement of a proceeding in a court; (c) under a settlement of a claim that is the subject of a notice of claim under section 7; or (d) under a final order to pay made by a competent authority under a trade agreement that the Crown has entered into with the government of another province or territory of Canada, the government of Canada or any combination of those governments. 1994, c. 27, s. 51; 2009, c. 24, s. 32. ______
Paiement par la Couronne 22. Le ministre des Finances prélève sur le Trésor le montant que doit verser la Couronne en vertu, selon le cas : a) de l’ordonnance définitive et sans appel d’un tribunal; b) d’une transaction dans une instance judiciaire; c) d’une transaction d’une demande qui fait l’objet d’un avis de demande aux termes de l’article 7; d) d’une ordonnance définitive de paiement rendue par une autorité compétente dans le cadre d’un accord commercial que la Couronne a conclu avec le gouvernement d’une autre province ou d’un territoire du Canada, le gouvernement du Canada ou une combinaison d’entre eux. 1994, chap. 27, art. 51; 2009, chap. 24, art. 32.