The Criminal Lawyers Association and Lawrence Greenspon believe that the court could – and should in four particular cases – order the Attorney General to pay rates of remuneration, above the legal aid rates, where counsel were appointed as amicus. A majority of the Supreme Court disagreed.

 

Karakatsanis J, writing for the majority, held that the appointment of amicus, while within the inherent jurisdiction of the Superior Court, does not carry with it the power to set rates of remuneration; “[a]bsent authority flowing from a constitutional challenge or a statutory provision, exercising such power would not respect the institutional roles and capacities of the legislature, the executive (including the Attorney General), and the judiciary, or the principle that the legislature and the executive are accountable to the public for the spending of public funds” [para 15].

Karakatsanis J explained this conclusion by first outlining and concluding that the Superior Courts possess inherent jurisdiction, which she outlined as follows:

Thus, the inherent jurisdiction of superior courts provides powers that are essential to the administration of justice and the maintenance of the rule of law and the Constitution.  It includes those residual powers required to permit the courts to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner — subject to any statutory provisions.  I would add, however, that the powers recognized as part of the courts’ inherent jurisdiction are limited by the separation of powers that exists among the various players in our constitutional order and by the particular institutional capacities that have evolved from that separation [para 26].