Judges have the power to not only appoint lawyers to represent the interests of accused people, but to set the fees they’ll be paid from the public purse, the Ontario Court of Appeal has ruled.The decision in R. v. Russel is in some ways a major step forward in public funding of unrepresented persons, which has been an issue in Ontario for several years now. In 2009, Ontario criminal lawyers boycotted Legal Aid cases on the grounds that Legal Aid was underfunded and did not give them the resources to effectively represent their clients until the province agreed to increase funding for Legal Aid.
In a unanimous decision Tuesday, a three-judge panel rejected arguments from Ontario’s attorney general that judges have no business setting compensation for court-appointed lawyers because only the Legislature can decide how to spend money from the province’s consolidated revenue fund.
In Russel the Court of Appeal seemed to at least partially recognize this sentiment by agreeing with the trial judge who assigned payment to the lawyers operating as amicus curiae on Mr. Imona Russel's behalf at rates well in excess of Legal Aid rates, on the basis that his case was complex and that the client had been exceptionally uncooperative with previous counsel, which was why he no longer qualified for Legal Aid. (The question of whether Mr. Imona Russel's lack of cooperation would have been so great an issue in a relationship with a more generously compensated lawyer is simply too hypothetical to answer, and one both hopes and expects that most lawyers would be as patient as possible with a fractious client regardless of their compensation.)
Now, amicus curiae are not, properly, counsel to the defendant; in a situation such as this they advance legal argument on his behalf, but are not in any sense his client and therefore are not obligated to take instruction from him. The Court of Appeal rejected the Attorney General's argument on appeal that this constituted an end-run around the Legal Aid limits:
This submission fails for three reasons. First, the Legal Aid Services Act does not apply to amicus. Second, amicus were appointed because, in part, the legal aid scheme could not adequately respond to these cases, in large measure because of the conduct of the accused. Third, amicus does not perform the role of defence counsel. For example, we agree with the reasons of Forestell J. that the task asked of amicus in Imona Russel #1 cannot simply be equated with defence counsel. It was not. It was to assist the court in very difficult circumstances, in part by performing some of the services of defence counsel for a completely uncooperative client but also serving the much broader interests of the administration of justice as described below.Of course, if amicus are not defense counsel, but the nature of the case required that they be paid more than defense counsel being compensated through Legal Aid, this then demands that we ask why counsel for Legal Aid were not paid as highly in the first place. The Court states that the events in Russel are exceptional because of the defendant's conduct, but criminal defense lawyers working with Legal Aid clients frequently have to defend clients only marginally less difficult (many clients with mental illnesses wind up on Legal Aid rolls). Does not the difficult nature of that work, then, following Russel, demand higher compensation?