In ONTARIO v. CRIMINAL LAWYERS ASSOCIATION OF ONTARIO, 2013 SCC 43, August 1, 2013, the Supreme Court of Canada considered the authority of courts of inherent jurisdiction and courts of statutory authority to appoint amici curiae.   On this point the Court stated:

The capacity of a superior court to appoint an amicus stems from the court’s inherent jurisdiction to act where necessary to ensure that justice can be done.  For a statutory court, the capacity stems from the court’s power to manage its own process and operate as a court of law, and arises in situations where the court must be able to appoint an amicus in order to exercise its statutory jurisdiction.

In this appeal, four trial judges appointed counsel to assist the accused, who had in each case discharged counsel of their choice.  In each of the cases, the amicus refused to accept the legal aid rate offered by the Attorney General.  The trial judge in each case fixed a rate that exceeded the tariff, ordering the

Attorney General to pay.  The Attorney General appealed all four decisions. The Ontario Court of Appeal concluded that provincial and superior courts have the jurisdiction to fix the rates of compensation.  The Attorney General appealed from that decision to the Supreme Court of Canada.

The Supreme Court of Canada allowed the appeals.  In describing the issue raised, it noted, at paragraph 2, that it “is not disputed that a court may appoint a lawyer as ‘amicus curiae’, a ‘friend of the court’, to assist the court in exceptional circumstances; or that the Attorney General is obligated to pay amici curiae when appointed.”  The Court indicated that the issue “is whether a court’s inherent or implied jurisdiction extends to fixing the rates of compensation for amici curiae.” The Court also cautioned against the overuse of such appointments, pointing out that the appointment of amicus should “be used sparingly and with caution, in response to specific and exceptional circumstances.” Interestingly, the Court said that while “trial judges are obliged to assist unrepresented litigants, they are not permitted to give them strategic advice.”

The Supreme Court of Canada held, at paragraph 5, that absent “statutory authority or a challenge on constitutional grounds, courts do not have the institutional jurisdiction to interfere with the allocation of public funds.  While the jurisdiction to control court processes and function as a court of law gives courts the power to appoint amici curiae, it does not, in itself, provide the power to determine what the Attorney General must pay them.  The scope of a superior court’s inherent power, or of powers possessed by statutory courts by necessary implication, must respect the constitutional roles and institutional capacities of the legislature, the executive and the judiciary.  As the Chief Law Officers of the Crown, responsible for the administration of justice on behalf of the provinces, the Attorneys General of the provinces, and not the courts, determine the appropriate rate of compensation for amici curiae.”

The Court also held that in “cases where the lawyer contemplated by the court opts not to accept the compensation offered by the Attorney General, the court does not, in my view, have the ability to specify a rate of remuneration in order to secure the amicus of its choice.” [paragraph 70]

The Supreme Court of Canada concluded that “if the assistance of an amicus is truly essential and the matter cannot be amicably resolved between the amicus and the Attorney General, the judge’s only recourse may be to exercise her inherent jurisdiction to impose a stay until the amicus can be found.  If the trial cannot proceed, the court can give reasons for the stay, so that the responsibility for the delay is clear.” [paragraph 76]