R. v. Caron (G.), (2011) 411 N.R. 89 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 13, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2011), 411 N.R. 89 (SCC);2011 SCC 5;JE 2011-232;[2011] EXP 427;EYB 2011-185762;14 Admin LR (5th) 30;[2011] 1 SCR 78;514 WAC 309;264 CCC (3d) 320;329 DLR (4th) 50;411 NR 89;[2011] ACS no 5;[2011] SCJ No 5 (QL);[2011] 4 WWR 1;499 AR 309

R. v. Caron (G.) (2011), 411 N.R. 89 (SCC)

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: [2011] N.R. TBEd. FE.012

Her Majesty The Queen in Right of the Province of Alberta (appellant) v. Gilles Caron (respondent) and Commissioner of Official Languages for Canada, Canadian Civil Liberties Association, Council of Canadians with Disabilities, Charter Committee on Poverty Issues, Poverty and Human Rights Centre, Women's Legal Education and Action Fund, Association canadienne-française de l'Alberta and David Asper Centre for Constitutional Rights (intervenors)

(33092; 2011 SCC 5; 2011 CSC 5)

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

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

February 4, 2011.

Summary:

In 2003, the accused was issued a traffic ticket for allegedly making an unsafe left turn. In defence, the accused challenged the constitutionnal 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 (i.e., the s. 24(1) order). 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 decided 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, in a decision reported 446 A.R. 362; 442 W.A.C. 362, dismissed the appeal. The Crown appealed again, seeking to have set aside the interim funding orders made on May 16 and October 19, 2007.

The Supreme Court of Canada 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. However, on December 16, 2009, in a decision reported 476 A.R. 198 (Q.B.), a Crown appeal was allowed.

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - At issue was whether the Alberta Court of Queen's Bench had inherent jurisdiction to grant an interim costs order with respect to proceedings in the Provincial Court - The Supreme Court of Canada stated that "... the supervisory jurisdiction of the superior courts over the provincial courts in Alberta includes the power to order interim funding before an inferior tribunal where it is ' essential to the administration of justice and the maintenance of the rule of law' (MacMillan Bloedel, at para. 38 (emphasis added)). It remains to determine, of course, the conditions under which such jurisdiction should be exercised in the present case. In my view, the Okanagan/Little Sisters (No. 2) criteria are helpful to this delineation" - The court thereafter reviewed the criteria for the grant of a public interest funding order - See paragraphs 24 to 39.

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 - The Crown appealed again - The Supreme Court of Canada dismissed the appeal.

Trials - Topic 4303

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

Cases Noticed:

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 6].

R. v. Rain (M.M.) (1998), 223 A.R. 359; 183 W.A.C. 359; 1998 ABCA 315, refd to. [para. 6].

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. [paras. 6, 50].

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. [paras. 6, 50].

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

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1, refd to. [para 7].

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. 7].

Manitoba Language Rights Reference (No. 2), [1992] 1 S.C.R. 212; 133 N.R. 88; 76 Man.R.(2d) 124; 10 W.A.C. 124, refd to. [para. 8].

Forest v. Manitoba (Attorney General), [1979] 2 S.C.R. 1032; 30 N.R. 213; 2 Man.R.(2d) 109, refd to. [para. 10].

Bilodeau v. Manitoba (Attorney General), [1986] 1 S.C.R. 449; 67 N.R. 108; 42 Man.R.(2d) 242, refd to. [para. 10].

Montréal (City) v. MacDonald, [1986] 1 S.C.R. 460; 67 N.R. 1, refd to. [para. 10].

Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, [2008] 1 S.C.R. 383; 372 N.R. 370; 2008 SCC 15, refd to. [para. 10].

Lefebvre v. Alberta (1993), 135 A.R. 338; 33 W.A.C. 338 (C.A.), leave to appeal refused [1993] 3 S.C.R. vii; 164 N.R. 159; 162 A.R. 15; 83 W.A.C. 15, refd to. [para. 10].

R. v. Rémillard (R.) et al. (2009), 251 Man.R.(2d) 17; 478 W.A.C. 17; 249 C.C.C.(3d) 44; 2009 MBCA 112, refd to. [para. 10].

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; 235 N.S.R.(2d) 151; 747 A.P.R. 151; 2005 SCC 43, refd to. [para. 19].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 24].

R. v. Cunningham - see Cunningham v. Lilles et al.

Cunningham v. Lilles et al., [2010] 1 S.C.R. 331; 399 N.R. 326; 283 B.C.A.C. 280; 480 W.A.C. 280; 2010 SCC 10, refd to. [paras. 24, 51].

Canadian Human Rights Commission v. Canadian Liberty Net et al., [1998] 1 S.C.R. 626; 224 N.R. 241, refd to. [para. 24].

R. v. Peel Regional Police Service et al., [2000] O.T.C. 821; 149 C.C.C.(3d) 356 (Sup. Ct.), refd to. [para. 26].

United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; 135 N.R. 321; 125 A.R. 241; 14 W.A.C. 241, refd to. [para. 26].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 34].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 51].

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. 51].

Bell Canada v. Canadian Radio-Television and Telecommunications Commission, [1989] 1 S.C.R. 1722; 97 N.R. 15, refd to. [para. 51].

Interprovincial Pipe Line Ltd. v. National Energy Board, [1978] 1 F.C. 601; 17 N.R. 56 (F.C.A.), refd to. [para. 51].

New Brunswick Electric Power Commission v. Maritime Electric Co. and National Energy Board, [1985] 2 F.C. 13; 60 N.R. 203 (F.C.A.), refd to. [para. 51].

Canadian Broadcasting League v. Canadian Radio-television and Telecommunications Commission and Kingston Cable T.V. Ltd., [1983] 1 F.C. 182; 43 N.R. 77 (F.C.A.), affd. [1985] 1 S.C.R. 174; 57 N.R. 76, refd to. [para. 51].

Dow Chemical Canada Inc. v. Union Gas Ltd. (1982), 141 D.L.R.(3d) 641 (Div. Ct.), affd. (1983), 42 O.R.(2d) 731 (C.A.), refd to. [para. 51].

Children's Aid Society of Huron County v. C.P. et al., [2002] O.T.C. 39; 2002 CanLII 45644 (Sup. Ct.), refd to. [para. 51].

Chrysler Canada Ltd. v. Competition Tribunal (Can.) et al., [1992] 2 S.C.R. 394; 138 N.R. 321, refd to. [para. 51].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 52].

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 52].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 54].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 54].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 54].

Authors and Works Noticed:

Holdsworth, William Searle, A History of English Law (3rd Ed. 1945), vol. 4, p. 538 [para. 25].

Jacob, I.H., The Inherent Jurisdiction of the Court (1970), 23 Current Legal Problems 23, pp. 23 [para. 29]; 24 [para. 32]; 27 [para. 24]; 28 [paras. 24, 34]; 48 [paras. 26, 29]; 49 [para. 29]; 51 [para. 24].

MacAulay, Robert W., and Sprague, James L.H., Practice and Procedure before Administrative Tribunals (2004) (Looseleaf Update 2010, Release 8), vol. 3, p. 29-1 [para. 51].

Mason, Keith, The Inherent Jurisdiction of the Court (1983), 57 Aust. L.J. 449, p. 456 [para. 26].

Morgan, George Osborne, and Davey, Horace, A Treatise on Costs in Chancery (1865), p. 268 [para. 25].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 290, 291 [para. 51].

Counsel:

Margaret Unsworth, Q.C., and Teresa Haykowsky, for the appellant;

Rupert Baudais, for the respondent;

Amélie Lavictoire and Kevin Shaar, for the intervenor, the Commissioner of Official Languages for Canada;

Benjamin L. Berger, for the intervenor, the Canadian Civil Liberties Association;

Written submissions only by Gwen Brodsky and Melina Buckley, for the intervenors, the Council of Canadians with Disabilities, the Charter Committee on Poverty Issues, the Poverty and Human Rights Centre and the Women's Legal Education and Action Fund;

Written submissions only by Michel Doucet, Q.C., Mark Power and François Larocque, for the intervenor, Association canadienne-française de l'Alberta;

Written submissions only by Cheryl Milne and Lorne Sossin, for the intervenor, the David Asper Centre for Constitutional Rights.

Solicitors of Record:

Attorney General of Alberta, Edmonton, Alberta, for the appellant;

Balfour Moss, Regina, Saskatchewan, for the respondent;

Office of the Commissioner of Official Languages, Ottawa, Ontario, for the intervenor, the Commissioner of Official Languages for Canada;

Arvay Finlay, Vancouver, B.C., for the intervenor, the Canadian Civil Liberties Association;

Camp Fiorante Matthews, Vancouver, B.C., for the intervenors, the Council of Canadians with Disabilities, the Charter Committee on Poverty Issues, the Poverty and Human Rights Centre and the Women's Legal Education and Action Fund;

Heenan Blaikie, Ottawa, Ontario, for the intervenor, Association canadienne-française de l'Alberta;

University of Toronto, Toronto, Ontario, for the intervenor, the David Asper Centre for Constitutional Rights.

This appeal was heard on April 13, 2010, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on February 4, 2011, when the following opinions were filed:

Binnie, J. (McLachlin, C.J.C., LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 49;

Abella, J., concurring reasons - see paragraphs 50 to 55.