R v Imona Russel

R. v. Imona Russel

2011 ONCA 303
Court of Appeal for Ontario — Rosenberg, Goudge and R.P. Armstrong JJ | April 19, 2011

Background

This case involved three separate criminal proceedings where trial judges appointed amicus curiae ("friends of the court") to assist in complex cases. In the most dramatic example, William Imona Russel was charged with first-degree murder and kept firing his lawyers — he retained and discharged several experienced counsel, causing Legal Aid Ontario to refuse further funding. The trial judge eventually appointed Anthony Moustacalis as amicus, initially at legal aid rates, but when Imona Russel's pattern of discharging counsel continued, the judge massively expanded the amicus role to essentially act as defence counsel for a completely uncooperative client.

The other cases involved Paul Whalen (facing dangerous offender proceedings) and Wahab Dadshani (first-degree murder), where amicus were appointed to ensure fair trials could proceed. In each case, the trial judges set compensation rates significantly higher than legal aid rates — $192/hour for Moustacalis, $200/hour for Anik Morrow in the Whalen case, and $250/hour for Lawrence Greenspon. The Attorney General appealed all these orders, arguing courts had no power to set compensation rates for amicus.

Issues

1. Do courts have jurisdiction to appoint amicus curiae and set their compensation rates?
2. Can courts order the Crown to pay amicus fees at rates above legal aid tariffs?
3. What factors should guide courts in setting appropriate compensation for amicus?

The Court's Jurisdiction to Appoint and Pay Amicus

The Court of Appeal firmly rejected the Attorney General's argument that courts could appoint amicus but couldn't set their pay rates. The court held that both superior courts and statutory courts (like the Ontario Court of Justice) have inherent jurisdiction to appoint amicus as part of their power to control their own processes and ensure justice is done. Critically, the power to set compensation is a "necessary incident" of the power to appoint — you can't have one without the other.

The Attorney General had argued this violated the constitutional principle that only Parliament can authorize spending public money (the "Auckland Harbour principle"). The court disagreed, finding that existing legislation — specifically the Proceedings Against the Crown Act and Financial Administration Act — already provided statutory authority for courts to order Crown payments. The court emphasized that appointing amicus without ensuring they get paid would be pointless and could force unnecessary stays of proceedings.

Setting Appropriate Compensation Rates

The court established a multi-factor test for setting amicus compensation, drawing from Supreme Court precedents. Relevant factors include: the lawyer's experience and expertise, the complexity of the case, the importance of the issues, the scope of duties assigned to amicus, what legal aid would have paid, and the fact that this constitutes public service (so rates should be somewhat below private sector rates). Importantly, the court rejected the Crown's argument that amicus should be limited to legal aid rates, noting that amicus often perform more complex roles than regular defence counsel — they must assist the court while trying to protect an uncooperative accused's interests.

The court also clarified that amicus appointments are court orders, not contracts with the Attorney General, so the Crown cannot unilaterally dictate compensation terms. In the Imona Russel case, the court even upheld the trial judge's decision to appoint an independent third-party assessor to review amicus accounts when Legal Aid Ontario proved uncooperative.

Key Takeaway

Courts have both the power to appoint amicus curiae and the authority to ensure they're fairly compensated at rates reflecting the complexity and importance of their role.

This decision establishes important precedents about judicial independence and case management powers, showing that courts won't let administrative or financial disputes derail serious criminal proceedings when the administration of justice is at stake.