R. v. Caron (G.) et al., (2011) 515 A.R. 304

• Judge: Côté, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 23, 2011
• Citations: (2011), 515 A.R. 304;2011 ABCA 385

R. v. Caron (G.) (2011), 515 A.R. 304; 532 W.A.C. 304 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JA.041

Sa Majesté La Reine/Her Majesty the Queen (intimé/respondent) v. Gilles Caron (requérant/applicant) (appelant/appellant)

Sa Majesté La Reine/Her Majesty the Queen (intimé/respondent) v. Pierre Boutet (requérant/applicant) (appelant/appellant)

(1003-0016-A; 1003-0017-A; 2011 ABCA 385)

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

Alberta Court of Appeal

Côté, J.A.

December 21, 2011.

Summary:

The accused's mother tongue was French. He was charged with an offence under the Traffic Safety Act (Alta.) and its Use of Highways and Rules of Road Regulations. This legislation was enacted, printed and published in English only by virtue of s. 3 of the Languages Act (Alta.). In his defence, the accused argued that his constitutional language rights were violated because the relevant legislation was not published in French. The accused filed a Notice of a Constitutional Question and sought the following remedies: (1) a declaration under s. 52 of the Constitution Act, 1982, that the Languages Act, in as much as it abolished or diminished language rights previously existing under s. 110 of the Northwest Territories Act, was incompatible with the Constitution of Canada and was inoperative; (2) an order under s. 24(1) of the Charter setting aside the charge against the accused; (3) a declaration under s. 52 of the Constitution Act that the Alberta Legislature was obliged to enact all its Acts and Regulations in French, beginning with the Traffic Safety Act, the Use of Highways and Rules of Road Regulations, the Provincial Court Act and Constitutional Notice Regulation; and (4) a declaration under s. 52 of the Constitution Act that all persons had a constitutionally guaranteed right to proceedings in French or English in criminal and civil matters before all Alberta courts, including the right to file all forms and documents in French and to be heard and understood in French by the courts, without an interpreter.

The Alberta Provincial Court, in a decision reported 450 A.R. 204, held that the accused's constitutional language rights were violated and found him not guilty of the offence under the Traffic Safety Act. The court indicated that it did not have jurisdiction to grant the declarations sought. The Crown appealed against the acquittal.

The Alberta Court of Queen's Bench, in a decision reported 476 A.R. 198, allowed the appeal. There was no obligation, constitutionally or otherwise presently, to publish the Traffic Safety Act, or its regulations, or issue traffic tickets in French in Alberta. The accused's language rights were not violated. The court set aside the acquittal and found the accused guilty as charged. The court invited the parties back to deal with sanction. The accused applied for leave to appeal. The Association canadienne-française de l'Alberta requested intervener status on both the application and the appeal proper.

The Alberta Court of Appeal, per Watson, J.A., in a decision reported 493 A.R. 200; 502 W.A.C. 200, allowed the application in part. The court certified the two following questions for consideration by a full panel: (a) must the laws of Alberta be printed and published in French and English; and (b) was the Languages Act, R.S.A. 2000, c. L-6, ultra vires or without effect in as much as it repealed a constitutional obligation by Alberta to print and publish its laws and regulations in French and in English? The court ruled that there was no need to recognize the Association canadienne-française de l'Alberta as intervener on the application where the court actually heard it anyway. As for the appeal proper, the court referred the intervention question to another judge or a panel of the court. Finally, the court suspended the "obligation" of the accused to attend the sanction hearing. The accused applied for a grant of litigation funding ("advance costs") by the Crown in Right of Alberta. His counsel suggested a cap of $80,000. L'Association Canadienne-Française de l'Alberta and l'Assemblée Communautaire Fransaskoise moved to be allowed to intervene in the appeal.

The Alberta Court of Appeal, per Côté, J.A., ordered that the accused be given a loan of $11,600, at 3% interest compounded annually, repayable by instalments of $200 per month. The court allowed the motions for intervener status.

Civil Rights - Topic 4638

Right to counsel - Appointment of counsel by the court or the state - By appeal court - The accused was charged under Alberta legislation with a traffic offence - In defence, the accused argued that his constitutional language rights were violated because the applicable legislation was not published in French - The trial judge acquitted the accused - An appeal judge overturned the acquittal and entered a conviction - The accused obtained leave to appeal respecting the following issues: (a) must the laws of Alberta be printed and published in French and English; and (b) was the Languages Act, R.S.A. 2000, c. L-6, ultra vires or without effect in as much as it repealed a constitutional obligation by Alberta to print and publish its laws and regulations in French and in English? - The accused sought funding (called "advance costs") from the Crown (Criminal Code, s. 684) - His counsel suggested a cap of $80,000 - L'Association Canadienne-Française de l'Alberta (ACFA) and l'Assemblée Communautaire Fransaskoise (ACF) moved to be allowed to intervene in the appeal - The Alberta Court of Appeal, per Côté, J.A., ordered that the accused be given a loan of $11,600, at 3% interest compounded annually, repayable by instalments of $200 per month - The court also allowed the motions for intervener status - The court discussed the Okanagan (SCC 2003) tests respecting funding (genuine impecuniosity, prima facie meritorious claim, issues of public importance, case being "sufficiently special") and the law on the degree of funding, and stated as follows: (1) the Okanagan tests must all be met; (2) considerations of proportionality and "due economy" did not necessarily allow full funding; (3) competing demands and limited public revenue required that choices be made; (4) the work should be simpler as leave to appeal was granted on "only two questions of law"; (5) the now unemployed accused could get work and also raise some funds; (6) ACFA and ACF, familiar with the case, could take the lead; (7) taxpayers need not fund expenses that would allow the accused to retain the lead; (8) the cap suggested by counsel indicated that 400 to 533 hours could be spent on the appeal: this was excessive; (9) the appeal would not take more than a day to argue and two counsel were not needed to argue the appeal orally; (10) the factum needed "comparatively little fresh writing"; and (11) Alberta Legal Aid ordinarily made loans - See paragraphs 1 to 110.

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - [See Civil Rights - Topic 4638 ].

Cases Noticed:

Bilodeau v. Manitoba (Attorney General), [1986] 1 S.C.R. 449; 67 N.R. 108; 42 Man.R.(2d) 242, refd to. [para. 3].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 3].

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1, refd to. [para. 4].

R. v. Mercure - see Mercure v. Saskatchewan.

R. v. Paquette, [1990] 2 S.C.R. 1103; 137 N.R. 232; 125 A.R. 388; 14 W.A.C. 388, refd to. [para. 4].

Lefebvre v. Alberta (1993), 135 A.R. 338; 33 W.A.C. 338 (C.A.), refd to. [para. 6].

R. v. Caron (G.), [2011] 1 S.C.R. 78; 411 N.R. 89; 499 A.R. 309; 514 W.A.C. 309; 2011 SCC 5, consd. [para. 11].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al. (2003), 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 20].

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 31].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 34].

Authors and Works Noticed:

Alberta, Hansard, February 24, 2011 [para. 37].

Bayley (2010), 36 Law Practice (#6), p. 32 [para. 82].

Canada, Department of Justice, Agent Affairs Program, Policies, Guidelines and Reference Documents (June 2008) at http://canada.justice.gc.ca/min-la/ConPolPolCon/conpol-polcon-eng. asp, generally [para. 91].

Hall (2009), 35 Law Practice (#4), p. 52 [para. 82].

Krocheski and Malone (1994), 20 Law Practice Management (#3), p. 22 [para. 82].

Menkel-Meddow (1994), 44 Case W. Reserve L. Rev. 621, pp. 660-661 [para. 82].

Reed (1989), 15 Legal Economics (#6), p. 18 [para. 82].

Snyder (1998), 24 Law Practice Management (#3), p. 25 [para. 82].

Counsel:

T.R.A. Haykowsky, for the respondent, Crown;

R.J.F. Lepage, for the applicant, M. Caron and l'Assemblée Communautaire Fransaskoise;

A.W. Damer, for the applicant, M. Boutet;

M.C. Doucet, Q.C., and F.J. Lerocque, for l'Association Canadienne-Française de l'Alberta.

These motions were heard on November 23, 2011, by Côté, J.A., of the Alberta Court of Appeal, who delivered the following reasons for decisions on December 21, 2011.