R. v. Caron (G.), 2007 ABQB 262

• Judge: Marceau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 25, 2007
• Citations: 2007 ABQB 262;(2007), 413 A.R. 146 (QB)

R. v. Caron (G.) (2007), 413 A.R. 146 (QB)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] A.R. TBEd. AP.105

Her Majesty The Queen (appellant) v. Gilles Caron (respondent)

Gilles Caron (appellant) v. Her Majesty The Queen (respondent)

(040241291S1; 2007 ABQB 262)

Indexed As: R. v. Caron (G.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Marceau, J.

April 19, 2007.

Summary:

In 2003, the accused was issued a traffic ticket for allegedly making an unsafe left turn. In defence, the accused challenged the constitutional validity of s. 2 of the Alberta Languages Act, which provided that all legislation in existence prior to July 1988 was valid notwithstanding it was enacted and published in English only. As of August 2, 2006, the matter had yet to proceed to trial. Repeated adjournments resulted from the Crown's failure to appoint counsel. On that date, the trial judge ordered the Crown to pay the accused $15,949.65 in costs, which defence counsel estimated to be the increased legal costs of the defence occasioned by the repeated adjournments. On the same date, the judge refused the accused's request for state-funded counsel. On November 6, 2006, the judge granted, as a s. 24(1) Charter remedy, an order providing for state-funded counsel and disbursements, plus the expenses of research personnel and expert witnesses, based on a prospective breach of the accused's s. 11(d) Charter right to a fair trial. The Crown appealed the costs award and the s. 24(1) Charter remedy. The accused appealed the first decision denying state-funded counsel.

The Alberta Court of Queen's Bench declined to interfere with the judge's discretionary decision to award costs against the Crown for the increased defence costs occasioned by the Crown's delay in appointing counsel. The appeal from the initial refusal to order state-funded counsel, an interim costs decision, was dismissed for want of jurisdiction. In any event, the Provincial Court, given its limited jurisdiction respecting costs, had no jurisdiction to award interim costs to fund a constitutional challenge. The court allowed the Crown's appeal and quashed the judge's order for state-funded counsel fees and expert fees.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See Civil Rights - Topic 8380.7 ].

Civil Rights - Topic 4633

Right to counsel - Appointment of counsel by the court or the state - Where party impecunious - The accused was issued a traffic ticket for allegedly making an unsafe left turn - In defence, the accused challenged the constitutional validity of s. 2 of the Alberta Languages Act, which provided that all legislation in existence prior to July 1988 was valid notwithstanding it was enacted and published in English only - The trial judge allowed the accused's application for state-funded counsel, disbursements and expenses for research personnel and expert witnesses, finding that the absence of funding would violated the accused's right to a fair trial (Charter, s. 11(d)) - The Alberta Court of Queen's Bench quashed the order - The court stated that "I have not been able to find persuasive case law, civil or criminal, where state funding was granted where, as here, there are no serious penal consequences should the accused be convicted and, in fact, the constitutional question, not guilt or innocence, is the only serious question the accused wishes to argue. ... were I to uphold the funding order ... I would be deciding spending priorities for public funds. ... constitutional challenges, even meritorious ones, should not be indirectly funded under the guise of a Charter fair trial right just because they involve a quasi-criminal trial and are complex." - The court concluded that state funded counsel was not required for the offence charged - While raising the complex constitutional argument could only be fairly argued by counsel, that did not change the seriousness of the offence - See paragraphs 79 to 112.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - In 2003, the accused was issued a traffic ticket for allegedly making an unsafe left turn - In defence, the accused challenged the constitutional validity of s. 2 of the Alberta Languages Act, which provided that all legislation in existence prior to July 1988 was valid notwithstanding it was enacted and published in English only - As of August 2, 2006, the matter had yet to proceed to trial - Repeated adjournments resulted from the Crown's failure to appoint counsel - On that date, the trial judge ordered the Crown to pay the accused $15,949.65 in costs, which defence counsel estimated to be the increased legal costs of the defence occasioned by the repeated adjournments - The Alberta Court of Queen's Bench dismissed the Crown's appeal from the discretionary costs award granted as a remedy under s. 24(1) of the Charter - Although the trial judge was overly critical of some Crown conduct, he was correct in finding that the inexcusable delay in appointing counsel was blameworthy conduct that caused the repeated adjournments that denied the accused's s. 11(d) Charter right to a fair trial - There was no reason to interfere with the judge's discretionary decision - See paragraphs 14 to 71.

Civil Rights - Topic 8594

Canadian Charter of Rights and Freedoms - Practice - Discovery or production - [See Criminal Law - Topic 5410.2 ].

Criminal Law - Topic 4591

Procedure - Costs - Against the Crown - [See Civil Rights - Topic 8380.7 ].

Criminal Law - Topic 5410.2

Evidence - Witnesses - Pre-trial disclosure by accused re expert evidence - In 2003, the accused was issued a traffic ticket for allegedly making an unsafe left turn - In defence, the accused challenged the constitutional validity of s. 2 of the Alberta Languages Act, which provided that all legislation in existence prior to July 1988 was valid notwithstanding it was enacted and published in English only - The accused gave 30 days' notice under s. 657.3 of the Criminal Code of its intention to call two experts, including their names, areas of expertise and qualifications - Unlike the obligation imposed on the Crown under s. 657.3, there was no pre-trial obligation for an accused to disclose the substance of the expert's proposed evidence - The Alberta Court of Queen's Bench held that s. 657.3 was designed for an ordinary case where the Crown had to prove guilt beyond a reasonable doubt - It was ill-suited for a case where an accused raised a constitutional challenge in defence and had the burden of proving a Charter breach on a balance of probabilities - The court stated that the accused's stance, while technically correct, was contrary to customary practice - The accused should have made pre-trial disclosure to the Crown by way of a "will say" statement or "summary of evidence" to avoid the Crown requiring an adjournment to prepare for cross-examination - Such a practice would promote an orderly trial and fair disclosure - See paragraphs 24 to 32.

Criminal Law - Topic 7473.2

Summary conviction proceedings - Appeals - General - Appeal from interlocutory decision - [See first Practice - Topic 7883 ].

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The Alberta Court of Queen's Bench stated that "representations by counsel as to the practice of the court is not 'hearsay evidence'" - See paragraphs 37.

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - The accused was issued a traffic ticket for allegedly making an unsafe left turn - In defence, the accused challenged the constitutional validity of s. 2 of the Alberta Languages Act, which provided that all legislation in existence prior to July 1988 was valid notwithstanding it was enacted and published in English only - The trial judge denied the accused interim costs to fund his defence, which included experts - The Alberta Court of Queen's Bench dismissed the accused's appeal for want of jurisdiction, as the interim costs order was not a final order subject to appeal - See paragraphs 72 to 78.

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - An accused charged with a summary conviction offence (traffic ticket) challenged the constitutional validity of s. 2 of the Alberta Languages Act - At issue was whether the Supreme Court of Canada's decision respecting interim costs in British Columbia (Minister of Forests) v. Okanagan Indian Band et al. applied to criminal and quasi-criminal proceedings and whether the Provincial Court had jurisdiction to award interim costs - The Alberta Court of Queen's Bench held that there was no reason in principle why interim costs should not be granted to raise a constitutional question in a criminal or quasi-criminal proceeding if the Okanagan criteria were met (i.e., not definitely resolved that Okanagan interim costs limited to civil cases) - However, given the Provincial Court's limited jurisdiction respecting costs (ss. 409 and 480 of the Criminal Code, except where awarding costs as a Charter remedy), the Provincial Court judge had no jurisdiction to award interim costs even if the Okanagan criteria were met - See paragraphs 113 to 142.

Cases Noticed:

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161, refd to. [para. 3].

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1, refd to. [para. 8].

Lefebvre v. Alberta (1993), 135 A.R. 338; 33 W.A.C. 338 (C.A.), leave to appeal dismissed (1993), 164 N.R. 159; 162 A.R. 157; 83 W.A.C. 157; 105 D.L.R.(4th) vi (S.C.C.), reconsideration refused [1993] S.C.C.A. No. 177, refd to. [para. 10].

R. v. Yellowhorn (B.) (2006), 399 A.R. 144; 2006 ABQB 307, refd to. [para. 12].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 13].

Reilly, P.C.J. v. Wachowich, C.J.P.C. (2000), 266 A.R. 296; 228 W.A.C. 296; 2000 ABCA 241, refd to. [para. 13].

R. v. Robinson (C.J.) (1999), 250 A.R. 201; 213 W.A.C. 201; 1999 ABCA 367, refd to. [para. 13].

R. v. Krueger (D.W.) (2006), 380 A.R. 182; 363 W.A.C. 182; 2006 ABCA 63, refd to. [para. 16].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 26 C.C.C.(3d) 481, refd to. [para. 18].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 18].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91, refd to. [para. 18].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 18].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161, refd to. [para. 18].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31 (C.A.), refd to. [para. 28].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 45].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161, refd to. [para. 45].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 45].

R. v. Lemay, [1952] 1 S.C.R. 232, refd to. [para. 45].

R. v. Chamandy (1934), 61 C.C.C. 224 (Ont. C.A.), refd to. [para. 45].

R. v. 974649 Ontario Inc. et al. (1998), 114 O.A.C. 258 (C.A.), affd. [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345, refd to. [para. 67].

R. v. Pang (B.L.) (1994), 162 A.R. 24; 83 W.A.C. 24 (C.A.), refd to. [para. 67].

R. v. Neil (D.L.) (2003), 320 A.R. 274; 288 W.A.C. 274; 2003 ABCA 45, refd to. [para. 68].

R. v. Adams (D.C.) (2001), 290 A.R. 316 (Q.B.), refd to. [para. 75].

R.C. v. Québec (Procureur général), [2002] 2 S.C.R. 762; 289 N.R. 206, refd to. [para. 75].

R. v. Beauchamps - see R.C. v. Québec (Procureur général).

R. v. Kimmie (N.) (2006), 285 Sask.R. 186; 378 W.A.C. 186; 2006 SKCA 87, refd to. [para. 76].

R. v. Rain (M.M.) (1998), 223 A.R. 359; 183 W.A.C. 359; 1998 ABCA 315, refd to. [para. 81].

Panacui v. Legal Aid Society of Alberta, [1988] 1 W.W.R. 60; 80 A.R. 137 (Q.B.), refd to. [para. 82].

R. v. Chan (M.K.) et al. (2002), 317 A.R. 240; 284 W.A.C. 240 (C.A.), refd to. [para. 87].

R. v. Cai - see R. v. Chan (M.K.) et al.

R. v. Bartibogue (B.) et al., [2001] N.B.J. No. 186 (Prov. Ct.), revd. (2002), 250 N.B.R.(2d) 73; 650 A.P.R. 73 (T.D.), dist. [para. 98].

R. v. Dedam - see R. v. Bartibogue (B.) et al.

R. v. Paul (G.C.) (2002), 207 N.S.R.(2d) 378; 649 A.P.R. 378 (Prov. Ct.), dist. [para. 98].

R. v. Peter Paul - see R. v. Paul (G.C.).

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 103].

R. v. Sechon (1995), 104 C.C.C.(3d) 554 (Que. C.A.), refd to. [para. 106].

Mireau v. Canada et al. (1991), 96 Sask.R. 197 (Q.B.), refd to. [para. 106].

R. v. Satov, [1996] O.J. No. 2500 (C.J.), refd to. [para. 106].

R. v. Lafontaine and Lafontaine, [1998] Q.J. No. 1285 (S.C.), refd to. [para. 106].

R. v. Hill (1996), 34 C.R.R.(2d) 344 (Ont. Prov. Ct.), refd to. [para. 107].

Little Sisters Book and Art Emporium v. Minister of National Revenue (2007), 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 113].

R. v. Fournier (R.P.J.P.) et al., [2004] O.T.C. 260 (Sup. Ct.), revd. [2006] O.A.C. Uned. 315 (C.A.), refd to. [para. 118].

Vukelich v. Mission Institution (Warden) (2005), 209 B.C.A.C. 39; 345 W.A.C. 39; 38 B.C.L.R.(4th) 132; 2005 BCCA 75, refd to. [para. 128].

R. v. Onevathana (S.) et al. (2002), 306 A.R. 345; 2002 ABQB 27, refd to. [para. 132].

R. v. Gunn (P.B.) (2003), 335 A.R. 137; 2003 ABQB 314, refd to. [para. 134].

Canada (Attorney General) v. Stuart, J., and Savard (1996), 74 B.C.A.C. 81; 121 W.A.C. 81 (Yuk. C.A.), leave to appeal denied (1997), 207 N.R. 320; 85 B.C.A.C. 240; 138 W.A.C. 240 (S.C.C.), refd to. [para. 134].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 657.3 [para. 25].

Authors and Works Noticed:

Garton, Graham, Case Comment Re Canadian Charter of Rights and Freedoms, S. 11(b): The Relevance of Pre-Charge Delay in Assessing the Right to Trial Within a Reasonable Time (1984), 46 Nfld. & P.E.I.R. 177; 135 A.P.R. 177, generally [para. 18].

Proulx, Michel, and Layton, David, Ethics and Canadian Criminal Law (2001), p. 641 [para. 46].

Counsel:

Teresa Haykowsky (McLennan Ross LLP), for the appellant/respondent, Crown;

Rupert Baudais (Balfour Moss LLP), for the appellant/respondent, Caron.

These appeals were heard on January 25, 2007, before Marceau, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 19, 2007.