The SCC Grants Leave to Appeal in R. v. Caron
On August 27th, the SCC granted the Alberta government leave to appeal in R. v. Caron, 2009 ABCA 34. Chief Justice McLachlin, Justice Abella and Justice Rothstein granted the leave application without costs and without reasons. Nevertheless, it seems absurd that making an unsafe left turn has turned into a four year long engagement with the courts, followed by a rendezvous with the SCC. The seemingly inane set of facts of this case has traversed the Canadian justice system for four years and has taken on a level of significance that was not apparent when the the initial $100 traffic ticket was issued.
On December 3, 2003, Mr. Caron was charged with the regulatory offence of failure to make a left turn in safety, violating section 34(2) of the Alberta Use of Highway and Rules of the Road Regulation, Alta. Reg. 304/2002. Mr. Caron opted to defend his case on the basis of language rights, arguing that the Alberta statutes are invalid because they are not enacted in both English and French.
To pay for his court cases, Mr. Caron first applied to the Court Challenges Program (CCP) for additional funding. Unfortunately, additional funding was not granted as the program was abolished on September 25th, 2006, before the trial commenced. Mr. Caron’s attempts to obtain legal aid funding were also unsuccessful. As a final resort, Mr. Caron applied to the Provincial Court judge for an interim court order on the basis of the test developed in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71.
On November 6, 2006, the trial judge ordered the Crown to pay Mr. Caron’s lawyers and expert fees. The Alberta Court of Queen’s bench (2007 ABQB 632) overturned this decision on April 19, 2007, holding that the trial judge lacked the jurisdiction to grant Okanagan cost orders. Nevertheless, upon a renewal of the application, the Queen’s bench directed the Crown to pay for expert witnesses fees on May 16, 2007, and for Mr. Caron’s counsel on October 22, 2007.
Okanagan interim costs are available in quasi-criminal litigation
Justice Ouellette of the Alberta Court of Queen’s Bench held that quasi-criminal litigation could be awarded Okanagan interim costs if the case was a public interest matter “special enough to rise to the level where the unusual measure of ordering costs would be appropriate.” Justice Ouellette defined public interest matters as being cases of “significant importance having a wide impact, and an absence of potential financial benefit for the individual.”
Justice Ritter, writing for the Alberta Court of Appeal, corroborated the Alberta Court of Queen’s Bench decision, stating that the Court would only intervene with the trial judge’s discretion if the trial judge had misdirected himself on the law or made a palpable error in assessing the facts. He determined that if the constitutional challenge is clear from the outset, then there is little difference between a constitutional challenge in the quasi-criminal sphere and one in a civil litigation. He concluded that, “in principle, an Okanagan order may be available with respect to quasi-criminal proceedings when the real issue is not the guilt or innocence of the accused, but rather a constitutional question of public importance.”
Jurisdiction of the Alberta Court of Queen’s Bench to award interim costs
The Alberta Court of Queen’s Bench held that provincial court judges do not have the jurisdiction to award interim costs. Justice Ouellette concluded that “the [Alberta] Court of Queen’s Bench has inherent jurisdiction regarding requests for interim costs, not only in the matters which it hears, but also to ensure the proper administration of justice by rendering assistance to the Provincial Court, where that Court does not have equivalent jurisdiction.”
The Alberta Court of Appeal relied on a 1919 Privy Council case Board v. Board, (1919) AC 956, as support for the Alberta Court of Queen’s Bench decision. Justice Ritter recognized the Supreme Court of Alberta’s inherent jurisdiction “when no other avenue of enforcement was available.” He concluded that in Okanagan, the Supreme Court established the right to cost, but that this right is not capable of being enforced by the Provincial Court. He wrote, “there is binding authority that states that when a right exists, and if there is no other avenue to enforce that right, the Alberta Superior Court has the power to enforce it.” Having rejected the Crown’s argument that Okanagan did not create a substantive right to claim interim costs and that the Provincial Court lacked jurisdiction, the Alberta Court of Appeal held that it was open for the Court of Queen’s Bench to order interim costs.
The Importance of this Decision for Future Cases
This case raises a number of unique issues. First, it involves constitutional litigation in a quasi-criminal context. The Alberta Court of Appeal decided that, in case of a clear constitutional litigation issue, both the quasi-criminal and civil litigation contexts are treated the same. However, this decision leads us to question several legal definitions in various situations. What is the definition of “public interest” that would lead to the awarding of interim costs for litigation? What public matters are “special enough” such that awarding interim costs is justified? The subjective tests set out in Okanagan and Caron gives the courts significant leeway to determine when to award interim costs.
A second issue raised by this case involves governmental support of language rights, which may leave other equality groups out in the wind. The Harper government canceled the CCP funding in 2006. This constitutional remedy was unavailable at the beginning of this trial; however, as a result of a successful challenge the government reinstated the funding for minority language rights litigation. This successful campaign is a step forward for those advocating minority language rights and opens doors for future cases to proceed without filing interim costs applications and dealing with the associated problems. However, the ACA’s decision also closes doors for other groups who are seeking public funding for their litigation. Perhaps another time consuming and expensive lawsuit is required to expand the current funding from language rights litigation to other types of litigation based on equality.
Regardless of the outcome, it cannot be denied that interim costs are critical to access to justice. The upcoming Supreme Court decision will have to take this into account and consider all aspects of the significance of interim costs to society as a whole when coming to a conclusion.