R. v. Caron (G.), (2009) 446 A.R. 362 (CA)

• Judge: Hunt, Ritter and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 04, 2008
• Citations: (2009), 446 A.R. 362 (CA);2009 ABCA 34

R. v. Caron (G.) (2009), 446 A.R. 362 (CA);

      442 W.A.C. 362

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2009] A.R. TBEd. FE.021

Sa Majesté La Reine/Her Majesty the Queen (appelante/appellant)

(intimée/respondent) v. Gilles Caron (intimé/respondent)

(requérant/applicant)

(0703-0161-AC; 0703-0363-AC; 2009 ABCA 34)

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

Alberta Court of Appeal

Hunt, Ritter and Rowbotham, JJ.A.

January 30, 2009.

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 provincial court 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 provincial court 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 (see 416 A.R. 63). 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, in a judgment reported (2007), 413 A.R. 146, 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. Since the Provincial Court lacked jurisdiction to award interim costs to fund his constitutional challenge in provincial court, the accused applied to the Court of Queen's Bench for interim costs for the preparation and completion of his trial.

The Alberta Court of Queen's Bench, per Ouellette, J., in a decision dated May 16, 2007, directed the Crown to pay the accused's costs to cover his expenses for his counsel and expert witnesses. On October 19, 2007, the same judge, in a decision reported 424 A.R. 377, directed the Crown to pay the accused interim costs of $91,046.29, the balance of his legal fees for the trial. The court held that: (1) this was a very special quasi-criminal case which was not excluded from application of the interim cost principles of the Okanagan and Little Sisters cases by the Supreme Court of Canada; (2) the Court of Queen's Bench had inherent jurisdiction to award interim costs, not only in matters before it, but also in matters before the Provincial Court, to ensure the proper administration of justice; and (3) this was a special case of public importance, which was rare and exceptional, which warranted funding by an award of interim costs. The Crown appealed, arguing that interim costs should not have been awarded.

The Alberta Court of Appeal dismissed the appeal.

Editor's Note: On July 2, 2008, the trial judge rendered his decision regarding the traffic infraction, concluding that the accused's French language rights had been violated - see 450 A.R. 204.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - [See first and second Practice - Topic 7883 ].

Courts - Topic 2013.1

Jurisdiction - General principles - Criminal cases - Costs - [See first and second Practice - Topic 7883 ].

Courts - Topic 8345

Provincial courts - Alberta - Court of Queen's Bench - Jurisdiction - Interim costs - [See first and second Practice - Topic 7883 ].

Criminal Law - Topic 4587

Procedure - Costs - Interim funding - [See all Practice - Topic 7883 ].

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - In British Columbia v. Okanagan Indian Band (2003 SCC), the court set out the criteria for awarding interim costs - The Alberta Court of Appeal held that an Okanagan order for interim costs might be available with respect to quasi-criminal proceedings when the real issue was not the guilt or innocence of the accused, but rather a constitutional question of public importance - See paragraphs 1 to 24.

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - In British Columbia v. Okanagan Indian Band (2003 SCC), the court set out the criteria for awarding interim costs - The Alberta Court of Appeal held that a superior court (e.g., the Court of Queen's Bench) had inherent jurisdiction to assist a trial in an inferior court (e.g., the provincial court) by awarding an Okanagan interim costs order - See paragraphs 25 to 49.

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - The accused was issued a traffic ticket for 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 sought interim costs to fund his constitutional challenge in provincial court - The Alberta Court of Queen's Bench (chambers judge), applying the test for interim funding set out in British Columbia v. Okanagan Indian Band (SCC 2003), allowed the application and awarded interim costs - The chambers judge held that this was a special case of public importance, being sufficiently rare and exceptional to warrant interim funding - The accused lacked the financial resources to fund the case and exhausted alternative possibilities for funding, his claim had sufficient merit that it should be heard, and the issue transcended the accused's personal interests and was of public importance - The chambers judge stated that "the scope of the constitutional question, the historical and expert evidence, and the consequences of the decision not only on the accused, but also on the Francophone community and the linguistic functioning of Alberta institutions, constitute exceptional circumstances" - The Crown appealed - The Alberta Court of Appeal dismissed the appeal, holding that the chambers judge made no legal error.

Trials - Topic 4303

Costs - Interim or advance costs - [See all Practice - Topic 7883 ].

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; 2003 SCC 71, refd to. [para. 3].

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. 7].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1; 63 C.R.(3d) 113 (C.A.), refd to. [para. 13].

R. v. Rain (M.M.) (1998), 223 A.R. 359; 183 W.A.C. 359; 68 Alta. L.R.(3d) 371 (C.A.), refd to. [para. 13].

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 253 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 17].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.), [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 2005 SCC 43, refd to. [para. 21].

R. v. Eagle Child; R. v. Lefthand, [2007] 4 C.N.L.R. 281; 2007 ABCA 206, refd to. [para. 21].

R. v. Commanda, [2008] 3 C.N.L.R. 311; 2007 QCCA 947, refd to. [para. 21].

Ordre des arpenteurs-géomètres du Québec v. Commission de la construction du Québec, 2007 QCCA 475; J.E. 2007-844, refd to. [para. 21].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 21].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 55 C.R.(3d) 193, refd to. [para. 21].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 8 C.R.(4th) 145, refd to. [para. 21].

Forest v. Manitoba (Attorney General) (1979), 90 D.L.R.(3d) 230 (Man. Q.B.), revd. (1979), 98 D.L.R.(3d) 405 (Man. C.A.), affd. [1979] 2 S.C.R. 1032; 30 N.R. 213, refd to. [para. 22].

R. v. Caron (G.) (2007), 413 A.R. 146; 2007 ABQB 262, refd to. [para. 25].

R. v. Caron (G.) (2007), 424 A.R. 377; 2007 ABQB 632, refd to. [para. 25].

Alberta (Treasury Branches) v. Leahy et al. (2000), 270 A.R. 1; 2000 ABQB 575, refd to. [para. 35].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 44].

Board v. Board, [1919] A.C. 956 (P.C.), refd to. [para. 46].

Canadian Human Rights Commission v. Canadian Liberty Net et al., [1998] 1 S.C.R. 626; 224 N.R. 241, refd to. [para. 48].

St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; 68 N.R. 112; 73 N.B.R.(2d) 236; 184 A.P.R. 236, refd to. [para. 48].

Brotherhood of Maintenance of Way Employees v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495; 198 N.R. 161; 78 B.C.A.C. 162; 128 W.A.C. 162, refd to. [para. 48].

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1; 48 D.L.R.(4th) 1, refd to. [para. 52].

Lefebvre v. Alberta (1993), 135 A.R. 338; 33 W.A.C. 338; [1993] 3 W.W.R. 436 (C.A.), refd to. [para. 52].

Statutes Noticed:

Court of Queen's Bench Act, R.S.A. 2000, c. C-31, sect. 21 [para. 37].

Authors and Works Noticed:

Abrams, Linda S., and McGuinness, Kevin P., Canadian Civil Procedure Law (2008), p. 976 [para. 34].

Mason, Keith, The Inherent Jurisdiction of the Court (1983), 57 A.L.J. 449, pp. 456, 458 [para. 35].

Orkin, Mark M., The Law of Costs (2nd Ed.) (2008 Looseleaf Update), p. 2-55 [para. 41].

Counsel:

T.R. Haykowsky, for the appellant/respondent;

R. Baudais, for the respondent/applicant.

This appeal was heard on September 4, 2008, before Hunt, Ritter and Rowbotham, JJ.A., of the Alberta Court of Appeal. The following decision was delivered for the court, in both English and French, on January 30, 2009.