Her Majesty The Queen (appellant) v. William Imona Russel (accused) (C51166)

Her Majesty The Queen (appellant) v. William Imona Russel (accused) (C51166) Her Majesty The Queen (appellant) v. William Imona Russel (accused) (C51877) Her Majesty The Queen (appellant) v. Paul Whalen (accused) (C51139) Her Majesty The Queen (appellant) v. Lawrence Greenspon (respondent) (C51456; 2011 ONCA 303) Indexed As: R. v. Russel (W.I.) Ontario Court of Appeal Rosenberg, Goudge and Armstrong, JJ.A. April 19, 2011. Summary: These four appeals arose out of orders made by judges appointing amicus curiae in criminal proceedings. At issue was whether the judges had jurisdiction to set certain terms and conditions of the appointments relating to counsels' compensation, or in the case of one of the appeals, had power to put in place a process for monitoring the accounts submitted by amicus counsel. The Ontario Court of Appeal dismissed the appeals. The court held that inherent in, and incidental to, the judges' conceded power to appoint amicus curiae was the power to set the terms and conditions of that appointment, including the rates of compensation and the monitoring of the accounts. In a case where the appointment was made under the Charter, s. 24(1) provided the necessary foundation for orders respecting terms and conditions including payment of amicus' fees. In other cases, there was statutory authority to support payment from the Consolidated Revenue Fund of these orders in the Proceedings Against the Crown Act (Ont.) or the Financial Administration Act (Ont.). The judges' orders did not infringe any constitutional principles. Civil Rights - Topic 4646 Right to counsel - Appointment of counsel by the court or the state - Amicus curiae (incl. compensation issues) - [See both Civil Rights - Topic 8304]. Civil Rights - Topic 8304 Canadian Charter of Rights and Freedoms - General - Application of - General (incl. retrospectivity) - Prospective violations - The Ontario Court of Appeal stated that "in our view, the superior court and statutory courts are courts of competent jurisdiction for the purpose of granting a s. 24(1) remedy, such as the appointment of amicus... While s. 24(1) is generally viewed as a provision to remedy prior infringements of rights, it can also operate to prevent apprehended infringement rights..." - See paragraph 31.

Civil Rights - Topic 8304 Canadian Charter of Rights and Freedoms - General - Application of - General (incl. retrospectivity) - Prospective violations - The Ontario Court of Appeal noted that it had been suggested in several trial cases that if there was a Charter component to the appointment of amicus (e.g., an appointment to prevent a violation of Charter rights), there would be no jurisdiction in the courts to set fees for amicus - The Ontario Court of Appeal disagreed with that proposition - The court stated that "whether or not there is a Charter-component to the appointment of amicus does not determine the court's jurisdiction to make an order for payment of fees. Rather... if an accused applied under s. 24(1) for appointment of amicus and the trial judge was satisfied that such an appointment was necessary to ensure a fair trial as guaranteed by s. 7, the judge would have jurisdiction to make the order appointing amicus. As a necessary incident of that jurisdiction, the judge would have the power to order that remuneration for amicus be paid by the state and the power to determine the rate of payment..." - See paragraph 36. Civil Rights - Topic 8380.9 Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - For anticipatory breach (incl. appointment of amicus curiae) - [See both Civil Rights - Topic 8304]. Constitutional Law - Topic 8802 Spending powers - General - Legislative authorization required - The Attorney General of Ontario argued that the court had no jurisdiction to order the state to pay amicus' fees, relying on the broad proposition that under the Constitution, it was for Parliament or the Legislature, as the case may be, to allocate the expenditure of funds out of the Consolidated Revenue Fund, not the courts (i.e., the Harbour principle (Privy Council 1942)) - The Ontario Court of Appeal stated that the power to set the rate of compensation of amicus curiae and require the state to pay was a necessary incident of the court's jurisdiction to appoint amicus - While the Auckland Harbour principle applied in Canada, it did not excise the power to set the rate of compensation and order the state to pay from the jurisdiction to appoint amicus curiae - Through the Financial Administration Act (Ont.) and the Proceedings Against the Crown Act (Ont.), the Legislature authorized the payment by the Crown of amounts ordered under properly made court orders (such as compensation for amicus) - See paragraphs 47 to 52. Powers - Appointment of counsel - Amicus curiae (incl. compensation issues) - [See both Civil Rights - Topic 8304 and Constitutional Law - Topic 8802]. Ontario Court of Appeal stated that "In limited circumstances, there will be a statutory basis for a court to order appointment of amicus curiae. Where s. 24(1) of the Charter does not apply, and where there is no statutory basis, we are satisfied that a superior court and a statutory court conducting a criminal trial have the jurisdiction to appoint amicus curiae, which flows from the authority to control their processes in order to function as courts of law. This court has confirmed the jurisdiction of a superior court to appoint

amicus in R. v. Samra [1998 Ont. C.A.]... It is anchored in the superior court's inherent jurisdiction, that broad and flexible power to act where it is necessary to do so to ensure that justice can be done" - See paragraph 37 - The court stated further, that "in the case of a statutory court, such as the Ontario Court of Justice, the jurisdiction to appoint amicus is found in that court's power to manage its own process" - See paragraph 40. Ontario Court of Appeal stated that "where the court concludes that it is necessary to appoint amicus, it is for the court, not the Attorney General or Crown counsel to set the terms of the appointment. As this court said in Samra [1998]... 'amicus curiae is not a party to the action but a friend of the court.' The terms will be determined in each case by the court's assessment of what is necessary for the proper administration of justice. It is then for the court to set out the terms under which amicus will function. As with any counsel providing services to a private client, one of the terms under which counsel functions may concern compensation. The jurisdiction to appoint amicus must necessarily include the power to set the terms under which amicus will function, including the rate of compensation" - See paragraph 45. se four appeals arose out of orders made by judges appointing amicus curiae in criminal proceedings and setting certain terms and conditions of the appointments relating to counsels' compensation - The Attorney General argued that the court lacked jurisdiction to make the orders respecting compensation, and even if such jurisdiction existed, these orders should not have been made because the trial judges in these cases failed to adopt the "less restrictive approach" (i.e., a temporary stay of proceedings should have been imposed) - The Ontario Court of Appeal stated that while there was a need for caution in making orders that had the effect of spending public money, a temporary stay was not the appropriate remedy in these cases - The court also rejected the Attorney General's submission that the orders respecting compensation undermined the Legal Aid certificate program - See paragraphs 53 to 62. Ontario Court of Appeal stated that the power to set the rate of compensation of amicus curiae and require the state to pay was a necessary incident of the court's jurisdiction to appoint amicus - The court discussed the relevant factors that could be looked to in any particular case when the court had to determine the rate of compensation for amicus - See paragraphs 63 to 68. se four appeals arose out of orders made by judges appointing amicus curiae in criminal proceedings - At issue was whether the judges had jurisdiction to set certain terms and conditions of the appointments relating to counsels' compensation, or in the case of one

of the appeals, had power to put in place a process for monitoring the accounts submitted by amicus counsel - The Ontario Court of Appeal held that inherent in, and incidental to, the judges' conceded power to appoint amicus curiae was the power to set the terms and conditions of that appointment, including the rates of compensation and the monitoring of the accounts - In a case where the appointment was made under the Charter, s. 24(1) provided the necessary foundation for orders respecting terms and conditions including payment of amicus' fees - In other cases, there was statutory authority to support payment from the Consolidated Revenue Fund of these orders in the Proceedings Against the Crown Act (Ont.), or the Financial Administration Act (Ont.) - The judges' orders did not infringe any constitutional principles. Powers - Appointment of counsel - Amicus curiae (incl. compensation issues) - Russel was charged with first degree murder - He retained and then discharged several experienced legal aid lawyers - Legal Aid Ontario refused further funding - Moustacalis was appointed as amicus curiae with a limited role and agreed to compensation at legal aid rates - Russel continued his pattern of discharging defence counsel - Therefore, the trial judge significantly expanded the role of amicus and ordered compensation for Moustacalis of $192 per hour and $130 for junior counsel - The Attorney General appealed, arguing that the trial judge erred in disregarding the original agreement that compensation be at legal rates in finding that changes in the scope of amicus' appointment were relevant to the rate of compensation, and in setting that rate in the absence of evidence - The Ontario Court of Appeal rejected this argument - The trial judge's finding that there was such a significant change in the scope of the work required of the amicus that compensation should be revisited was entirely reasonable - The rate of compensation set by the judge was based on relevant considerations - The court agreed with the basis on which the trial judge proceeded and saw no reason to interfere with the rate of compensation ordered in these circumstances, even though it exceeded the legal aid rate for defence counsel - See paragraphs 4 to 15 and 71 to 73. Powers - Appointment of counsel - Amicus curiae (incl. compensation issues) - Russel was charged with first degree murder - He retained and then discharged several experienced legal aid lawyers - As a result, Legal Aid Ontario (LAO) refused further funding - Moustacalis was appointed amicus curiae - The trial judge ordered that Moustcalis' role be expanded and that he be compensated at $192 per hour and junior counsel at $130 per hour - LAO originally was to manage the funding, but a dispute arose - The trial judge removed the LAO monitor of the amicus' account and appointed a third party assessor - The judge ordered that the assessor's compensation and the accounts of amicus were to be paid by the government - The Attorney General appealed the order removing LAO as the monitor of amicus' account, putting in place the independent counsel process and requiring the government to pay the assessor's fees - The Ontario Court of Appeal rejected this argument, holding that there was no basis to interfere with the decision of the trial judge - The order assisted the court to properly administer justice - See paragraphs 15 to 20, 74 and 75.

Powers - Appointment of counsel - Amicus curiae (incl. compensation issues) - Whalen was convicted of a number of serious indictable offences and the Crown applied to have him declared a dangerous offender - The trial judge appointed an amicus curiae at the rate of $200 per hour - The Crown appealed, arguing that there was no basis to set a rate above the legal aid rate and no evidence to support the rate actually selected - The Ontario Court of Appeal disagreed with the Crown's argument - The trial judge in his reasons explained why the appointment of amicus was necessary - In selecting the precise rate, the trial judge made clear that he was not dealing with the legal aid standard for defence counsel but was setting the rate of compensation for a particular amicus - In selecting the rate, the trial judge considered and applied the relevant factors - There was no error in the trial judge proceeding as he did - See paragraphs 21 to 24, 76 and 77. Powers - Appointment of counsel - Amicus curiae (incl. compensation issues) - Dadshani was charged with first degree murder along with five other co-accused - He retained Greenspon to represent him - After five years, Dadshani discharged Greenspon, thus threatening to derail the trial - To ensure that the trial proceeded as scheduled, the trial judge appointed Greenspon as amicus - Within a few weeks, Dadshani advised the trial judge that new counsel had been found - The trial judge told Greenspon to cease any further work, but to keep his calendar clear for the two months that the trial was expected to occupy - The trial judge did not end the amicus appointment until several months later when new counsel advised that he was ready to proceed on the scheduled trial date - The trial judge ordered that Greenspon be compensated at $250 per hour, his junior counsel at $120 per hour and his clerk at $50 per hour - The Attorney General appealed the order setting the rate of compensation for the amicus - The Ontario Court of Appeal dismissed the appeal - See paragraphs 25 to 27, 78 and 79. Courts - Topic 2004 Jurisdiction - General principles - Inherent jurisdiction (incl. appointment of amicus curiae) - [See second ]. Criminal Law - Topic 4294 Procedure - Trial judge - Duties and functions of - Where accused not represented - [See second and third ]. Cases Noticed: R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 31]. New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 31]. R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 32]. R. v. Cairenius (R.), [2008] O.T.C. Uned. B93; 232 C.C.C.(3d) 13 (Sup. Ct.), disagreed with [para. 35]. Canada (Attorney General) v. Stuart, J., and Savard (1996), 74 B.C.A.C. 81; 121 W.A.C. 81; 106 C.C.C.(3d) 130 (Yuk. C.A.), refd to. [para. 37, footnote 1].

R. v. Samra (K.S.) (1998), 112 O.A.C. 328; 41 O.R.(3d) 434 (C.A.), leave to appeal refused (1999), 239 N.R. 400; 125 O.A.C. 198 (S.C.C.), refd to. [para. 38]. R. v. Caron (G.) (2011), 411 N.R. 89; [2011] A.R. TBEd. FE.078; 2011 SCC 5, refd to. [para. 39]. R. v. Cunningham - see Cunningham v. Lilles et al. Cunningham v. Lilles et al., [2010] 1 S.C.R. 331; 399 N.R. 326; 283 B.C.A.C. 280; 480 W.A.C. 280; 2010 SCC 10, refd to. Khadr v. Canada (Attorney General), [2008] 3 F.C.R. 306; 322 F.T.R. 256 (F.C.), refd to. [para. 43]. Harkat, Re, [2004] 2 F.C.R. 416, refd to. [para. 43]. Auckland Harbour Board v. R., [1924] A.C. 318 (P.C.), refd to. [para. 47]. Québec (Procureur général) v. R.C., [2003] R.J.Q. 2027 (C.A.), refd to. [para. 53]. R. v. Figueroa (N.) et al. (2003), 171 O.A.C. 139; 64 O.R.(3d) 321 (C.A.), refd to. [para. 57]. R. v. Peterman (B.) (2004), 186 O.A.C. 83; 70 O.R.(3d) 481 (C.A.), refd to. [para. 59]. R. v. Cai - see R. v. Chan (M.K.) et al. R. v. Chan (M.K.) et al. (2002), 317 A.R. 240; 284 W.A.C. 240; 170 C.C.C.(3d) 1 (C.A.), leave to appeal refused (2003), 328 N.R. 400; 363 A.R. 199; 343 W.A.C. 199 (S.C.C.), refd to. [para. 59]. R. v. P.H.L.W. (2004), 204 B.C.A.C. 269; 33 W.A.C. 269; 190 C.C.C.(3d) 60 (C.A.), leave to appeal refused (2005), 343 N.R. 200; 221 B.C.A.C. 320; 364 W.A.C. 320 (S.C.C.), refd to. [para. 60]. R. v. Martin (C.H.) (2010), 296 B.C.A.C. 178; 503 W.A.C. 178; 2010 BCCA 526, refd to. [para. 61]. R. v. White (J.R.), [2011] N.R. TBEd. MY.001; [2011] O.A.C. TBEd. MY.012; 2010 SCC 59, refd to. [para. 65]. Statutes Noticed: Canadian Charter of Rights and Freedoms, 1982, sect. 24(1) [para. 30]. Constitution Act, 1867, sect. 126 [para. 48]. Proceedings Against the Crown Act, R.S.O. 1990, c. P-27, sect. 22 [para. 50]. Financial Administration Act, R.S.O. 1990, c. F-12, sect. 11.1(1) [para. 49]; sect. 13 [para. 51]. Authors and Works Noticed: Carter, I., A Complicated Friendship: The Evolving Role of Amicus Curiae (2008), 54 C.R.(6th) 89, generally [para. 43]. Hogg, Peter W., Constitutional Law of Canada (5th Ed. 1997) (Looseleaf Supp.), p. 1-19 [para. 47]. LeSage, P., and Code, M., Report of the Review of Large and Complex Criminal Case Procedures (2008), pp. 156, 157 [para. 41]. Counsel: Malliha Wilson, Troy Harrison and Baaba Forson, for the appellant, The Attorney General for Ontario; P. Andras Schreck and Louis P. Strezos, for the intervener, The Criminal Lawyers'

Association. These appeals were heard on January 18, 2011, before Rosenberg, Goudge and Armstrong, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on April 19, 2011. Editor: Elizabeth M.A. Turgeon Appeals dismissed. *** Civil Rights - Topic 4646 Right to counsel - Appointment of counsel by the court or the state - Amicus curiae (incl. compensation issues) - The Ontario Court of Appeal stated that "in our view, the superior court and statutory courts are courts of competent jurisdiction for the purpose of granting a s. 24(1) remedy, such as the appointment of amicus... While s. 24(1) is generally viewed as a provision to remedy prior infringements of rights, it can also operate to prevent apprehended infringement rights..." - See paragraph 31. Civil Rights - Topic 4646 Right to counsel - Appointment of counsel by the court or the state - Amicus curiae (incl. compensation issues) - The Ontario Court of Appeal noted that it had been suggested in several trial cases that if there was a Charter component to the appointment of amicus (e.g., an appointment to prevent a violation of Charter rights), there would be no jurisdiction in the courts to set fees for amicus - The Ontario Court of Appeal disagreed with that proposition - The court stated that "whether or not there is a Charter-component to the appointment of amicus does not determine the court's jurisdiction to make an order for payment of fees. Rather... if an accused applied under s. 24(1) for appointment of amicus and the trial judge was satisfied that such an appointment was necessary to ensure a fair trial as guaranteed by s. 7, the judge would have jurisdiction to make the order appointing amicus. As a necessary incident of that jurisdiction, the judge would have the power to order that remuneration for amicus be paid by the state and the power to determine the rate of payment..." - See paragraph 36. Civil Rights - Topic 8380.9 Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - For anticipatory breach (incl. appointment of amicus curiae) - The Ontario Court of Appeal stated that "in our view, the superior court and statutory courts are courts of competent jurisdiction for the purpose of granting a s. 24(1) remedy, such as the appointment of amicus... While s. 24(1) is generally viewed as a provision to remedy prior infringements of rights, it can also operate to prevent apprehended infringement rights..." - See paragraph 31. Civil Rights - Topic 8380.9

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - For anticipatory breach (incl. appointment of amicus curiae) - The Ontario Court of Appeal noted that it had been suggested in several trial cases that if there was a Charter component to the appointment of amicus (e.g., an appointment to prevent a violation of Charter rights), there would be no jurisdiction in the courts to set fees for amicus - The Ontario Court of Appeal disagreed with that proposition - The court stated that "whether or not there is a Charter-component to the appointment of amicus does not determine the court's jurisdiction to make an order for payment of fees. Rather... if an accused applied under s. 24(1) for appointment of amicus and the trial judge was satisfied that such an appointment was necessary to ensure a fair trial as guaranteed by s. 7, the judge would have jurisdiction to make the order appointing amicus. As a necessary incident of that jurisdiction, the judge would have the power to order that remuneration for amicus be paid by the state and the power to determine the rate of payment..." - See paragraph 36. Ontario Court of Appeal stated that "in our view, the superior court and statutory courts are courts of competent jurisdiction for the purpose of granting a s. 24(1) remedy, such as the appointment of amicus... While s. 24(1) is generally viewed as a provision to remedy prior infringements of rights, it can also operate to prevent apprehended infringement rights..." - See paragraph 31. Ontario Court of Appeal noted that it had been suggested in several trial cases that if there was a Charter component to the appointment of amicus (e.g., an appointment to prevent a violation of Charter rights), there would be no jurisdiction in the courts to set fees for amicus - The Ontario Court of Appeal disagreed with that proposition - The court stated that "whether or not there is a Charter-component to the appointment of amicus does not determine the court's jurisdiction to make an order for payment of fees. Rather... if an accused applied under s. 24(1) for appointment of amicus and the trial judge was satisfied that such an appointment was necessary to ensure a fair trial as guaranteed by s. 7, the judge would have jurisdiction to make the order appointing amicus. As a necessary incident of that jurisdiction, the judge would have the power to order that remuneration for amicus be paid by the state and the power to determine the rate of payment..." - See paragraph 36. Attorney General of Ontario argued that the court had no jurisdiction to order the state to pay amicus' fees, relying on the broad proposition that under the Constitution, it was for Parliament or the Legislature, as the case may be, to allocate the expenditure of funds out of the Consolidated Revenue Fund, not the courts (i.e., the Auckland Harbour principle (Privy Council 1942)) - The Ontario Court of Appeal stated that the power to set the rate of compensation of amicus curiae and require the state to pay was a necessary incident of the court's jurisdiction to appoint amicus - While the Auckland Harbour principle applied

in Canada, it did not excise the power to set the rate of compensation and order the state to pay from the jurisdiction to appoint amicus curiae - Through the Financial Administration Act (Ont.) and the Proceedings Against the Crown Act (Ont.), the Legislature authorized the payment by the Crown of amounts ordered under properly made court orders (such as compensation for amicus) - See paragraphs 47 to 52. Courts - Topic 2004 Jurisdiction - General principles - Inherent jurisdiction (incl. appointment of amicus curiae) - The Ontario Court of Appeal stated that "In limited circumstances, there will be a statutory basis for a court to order appointment of amicus curiae. Where s. 24(1) of the Charter does not apply, and where there is no statutory basis, we are satisfied that a superior court and a statutory court conducting a criminal trial have the jurisdiction to appoint amicus curiae, which flows from the authority to control their processes in order to function as courts of law. This court has confirmed the jurisdiction of a superior court to appoint amicus in R. v. Samra [1998 Ont. C.A.]... It is anchored in the superior court's inherent jurisdiction, that broad and flexible power to act where it is necessary to do so to ensure that justice can be done" - See paragraph 37 - The court stated further, that "in the case of a statutory court, such as the Ontario Court of Justice, the jurisdiction to appoint amicus is found in that court's power to manage its own process" - See paragraph 40. Criminal Law - Topic 4294 Procedure - Trial judge - Duties and functions of - Where accused not represented - The Ontario Court of Appeal stated that "In limited circumstances, there will be a statutory basis for a court to order appointment of amicus curiae. Where s. 24(1) of the Charter does not apply, and where there is no statutory basis, we are satisfied that a superior court and a statutory court conducting a criminal trial have the jurisdiction to appoint amicus curiae, which flows from the authority to control their processes in order to function as courts of law. This court has confirmed the jurisdiction of a superior court to appoint amicus in R. v. Samra [1998 Ont. C.A.]... It is anchored in the superior court's inherent jurisdiction, that broad and flexible power to act where it is necessary to do so to ensure that justice can be done" - See paragraph 37 - The court stated further, that "in the case of a statutory court, such as the Ontario Court of Justice, the jurisdiction to appoint amicus is found in that court's power to manage its own process" - See paragraph 40. Criminal Law - Topic 4294 Procedure - Trial judge - Duties and functions of - Where accused not represented - The Ontario Court of Appeal stated that "where the court concludes that it is necessary to appoint amicus, it is for the court, not the Attorney General or Crown counsel to set the terms of the appointment. As this court said in Samra [1998]... 'amicus curiae is not a party to the action but a friend of the court.' The terms will be determined in each case by the court's assessment of what is necessary for the proper administration of justice. It is then for the court to set out the terms under which amicus will function. As with any counsel providing services to a private client, one of the terms under which counsel functions may concern compensation. The jurisdiction to appoint amicus must

*** necessarily include the power to set the terms under which amicus will function, including the rate of compensation" - See paragraph 45.