Access to justice, public interest and language rights.

• Jurisdiction: Canada
• Author: McKay-Panos, Linda
• Date: 01 May 2011

The Supreme Court of Canada recently released R v Caron, 2011 SCC 5, which brings together issues of access to justice, language rights and the public interest. The subject matter of the case may appear somewhat dry (whether Mr. Caron could be awarded interim costs for a public interest case before the Alberta Provincial Court). However, this case has potentially significant implications, especially for persons in minority groups.

Mr. Caron was charged with a traffic violation (making an unsafe left turn) and appeared in Alberta Provincial Court. At trial, he challenged the constitutionality of Alberta's failure to enact laws in both English and French. Caron's language rights challenge was originally funded by the Court Challenges Program ("CCP"), a federal program that provided funding for important court cases that advanced language and equality rights under the Constitution. However, the CCP was cancelled in 2006, and Caron could not continue to finance the litigation himself. Because he had launched a constitutional challenge, this involved complex issues, such as the validity of Alberta's Languages Act, RSA 2000, c L-6 in light of the North-West Territories Act, RSC 1886, c 50, the Alberta Act, SC 1905, c 3, existing case law, and unwritten principles of constitutional law (e.g., the protection of minorities). The original CCP funding was based on making a two-week constitutional argument in Provincial Court in early March, 2006. However, the Alberta Crown sought an adjournment in order to call expert evidence, and while Caron applied for further funding, the CCP had been discontinued and Caron was not able to afford a lawyer, nor to obtain legal aid funding. (It is interesting to note that in response to litigation launched by the Federation des communautes francophones et acadienne, the federal government reinstated the CCP in 2008 for language rights cases.)

Caron's trial resumed in late 2006, and 30 days were devoted to the Crown's evidence, with an additional three weeks of evidence called by the defence. In November 2006, Judge Wendon of the Alberta Provincial Court ordered the Crown to pay Caron's legal fees and expert witness expenses for the trial continuation, but the Alberta Court of Queen's Bench (Justice R.P. Marceau) quashed this decision (see R v Caron, 2007 ABQB 262). Nevertheless, Justice Marceau agreed that the Crown had unconscionably delayed Caron's trial by not appointing counsel in a timely way, which infringed...