SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen in Right of the Province of Alberta
Appellant
and
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
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella,
Charron, Rothstein and Cromwell JJ.
Reasons
for Judgment:
(paras. 1 to 49)
Concurring
Reasons:
(paras. 50 to 55)
|
Binnie J. (McLachlin C.J. and LeBel,
Deschamps, Fish, Charron, Rothstein and Cromwell JJ. concurring)
Abella J.
|
R. v. Caron, 2011
SCC 5, [2011] 1 S.C.R. 78
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 Interveners
Indexed
as: R. v. Caron
2011 SCC 5
File
No.: 33092.
2010: April 13;
2011: February 4.
Present: McLachlin C.J.
and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and
Cromwell JJ.
on
appeal from the court of appeal for alberta
Courts — Jurisdiction — Interim costs — Serious
constitutional issue arising in provincial court — Superior court making order
for interim costs in provincial court proceeding — Whether superior court has
inherent jurisdiction to grant interim costs in litigation taking place in the
provincial court — If so, whether criteria for an interim costs order were met.
Costs — Interim costs — Whether superior court
has inherent jurisdiction to grant interim costs in litigation taking place in
the provincial court — If so, whether criteria for an interim costs order were
met.
In
the course of a routine prosecution for a minor traffic offence, the accused C
claimed the proceedings were a nullity because the court documents were
uniquely in English. He insisted on his right to use French in “proceedings
before the courts” of Alberta as guaranteed in 1886 by the North‑West
Territories Act, R.S.C. 1886, c. 50, and the Royal Proclamation of
1869, arguing that the province could not abrogate French language rights
and that the Alberta Languages Act, R.S.A. 2000, c. L‑6,
which purported to do so, was therefore unconstitutional.
At
issue in this case are interim cost orders made by the Alberta Court of Queen’s
Bench — a superior court — to fund an accused defending the regulatory
prosecution in the provincial court. The appellant Crown says that the
superior court had no jurisdiction to make such an interim costs order and that
even if it did have such jurisdiction the interim costs order was improper in
any event.
C
had applied to the provincial court for interim funding late in his trial after
the Crown filed a “mountain” of historical evidence in reply. He established
to the satisfaction of the provincial court that he was unable to finance the
rebuttal evidence necessary to complete the trial. The provincial court, over
the Crown’s objection, ordered the payment of C’s lawyer and his experts
pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms . The
Alberta Court of Queen’s Bench later set aside the provincial court order; this
decision was not appealed. Subsequently, the Court of Queen’s Bench held that
it could (and did) make a costs order itself in respect of the provincial court
proceedings. This decision was upheld on further appeal. The Crown now seeks
not only to have the interim funding order set aside but
also repayment of monies already provided under the order of the Court
of Queen’s Bench.
Held:
The appeal should be dismissed.
Per
McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and
Cromwell JJ.: The provincial court was confronted with a potential
failure of justice once the unexpected length of the trial had exhausted C’s
financial resources. By that time substantial trial time and costs had already
been expended, including the substantial public monies provided under the Court
Challenges program. The Crown insisted on pursuing the prosecution in
provincial court; C insisted on his French language defence. Neither side
expressed any interest in a stay of proceedings. The courts in Alberta were
clearly concerned lest the Crown achieve, by pressing on with the prosecution
in the provincial court, an unfair advantage over the accused in the creation
of the crucial factual record on which an important constitutional issue would
be determined. A decision based on an incomplete record would not have put the
languages issue to rest. C’s challenge was considered by the courts below to
have merit and in their view it was in the interest of all Albertans that the
continuation of the constitutional challenge be adequately resourced and
properly dealt with.
Superior
courts possess an inherent jurisdiction to render assistance to inferior courts
to enable them to administer justice fully and effectively, although this
assistance can be rendered only in circumstances where the inferior tribunals
are powerless to act and the intervention of the superior court is essential to
avoid a serious injustice in derogation of the public interest. The
very plenitude of this inherent jurisdiction requires that it be exercised
sparingly and with caution. That being said, the apparent
novelty of the interim costs order is not fatal. Indeed, the superior court
may exercise its inherent jurisdiction even in respect of matters which are
regulated by statute or by rule of court, so long as it can do so without
contravening any statutory provision.
The
fundamental purpose (and limit) on judicial intervention is to do only what is
essential to avoid a serious injustice. In this respect, the criteria
formulated in British Columbia (Minister of Forests) v. Okanagan Indian Band
and Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs
and Revenue) (Little Sisters (No. 2)) are helpful in
determining whether the intervention of the Court of Queen’s Bench is essential
to enable the provincial court to “administer justice fully and effectively”.
These criteria are: (1) the litigation would be unable to proceed if the
order were not made; (2) the claim to be adjudicated is prima facie meritorious;
(3) the issues raised transcend the individual interest of the particular
litigant, are of public importance, and have not been resolved in previous
cases. The superior court must decide, with a view to all the circumstances,
whether the case is sufficiently special that it would be contrary to the
interests of justice to deny the funding application, or whether it should
consider other methods to facilitate the hearing of the case. The court is to
consider all relevant factors that arise on the facts.
Here
the provincial court was confronted with language rights litigation of major
significance that after months of trial had reached the point of collapse. The
intervention of the superior court was not a matter of routine. It was part of
a salvage operation to avoid months of effort, costs and judicial resources
from being thrown away. It would be contrary to the interest of justice if the
proper resolution of this case on the merits was forfeited just because C — the
putative standard bearer for Franco‑Albertans in this matter — lacked the
financial means to complete what he started.
The
courts below made no palpable error in finding that the accused had exhausted
his funds and that he had no realistic means of paying the further costs
resulting from the continuance of the litigation. All other possibilities for
funding had been exhausted. The Queen’s Bench judge was impressed with the
“responsible manner” in which C had pulled together finances for the
anticipated length of trial and its unexpected continuances. C’s claim had prima
facie merit. Finally, the case is of public importance. It was an attack
of prima facie merit on the validity of the entire corpus of
Alberta’s unilingual statute books. The public interest requires that the case
be dealt with now. It is “sufficiently
special” under the Okanagan/Little Sisters (No. 2) criteria.
Per
Abella J.: The unique circumstances of this case appropriately attract
the award of interim public interest funding based on the principles in Okanagan
and Little Sisters (No. 2). It is important to note,
however, that the issue of the jurisdiction of the provincial courts to award
such costs was not before us. This case, therefore, should not be seen as
unduly expanding the superior court’s inherent jurisdiction into a broad
plenary power to “assist”. Instead, inherent jurisdiction should be
interpreted consistently with this Court’s evolving jurisprudence about the
role, authority and mandate of statutory courts and tribunals. When
considering the proper limits of a superior court’s inherent jurisdiction on
matters on which a statutory court or tribunal is seized, any such inquiry
should reconcile the common law scope of inherent jurisdiction with the implied
legislative mandate of a statutory court or tribunal to control its own process
to the extent necessary to prevent an injustice and accomplish its statutory
objectives.
Cases Cited
By Binnie J.
Applied:
British Columbia (Minister
of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Little Sisters
Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007
SCC 2, [2007] 1 S.C.R. 38; referred to: R. v.
Rowbotham (1988), 41
C.C.C. (3d) 1; R. v. Rain (1998), 223 A.R. 359; R. v. Mercure,
[1988] 1 S.C.R. 234; R. v. Paquette, [1990] 2 S.C.R. 1103; R. v. Caron, 2008 ABPC 232, 95
Alta. L.R. (4th) 307; R. v. Caron, 2009 ABQB 745, 23 Alta. L.R. (5th)
321, leave to appeal granted in part, 2010 ABCA 343, [2010] A.J. No. 1304 (QL); Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, and [1992] 1 S.C.R.
212; Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032; Bilodeau
v. Attorney General of Manitoba, [1986] 1 S.C.R. 449; MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; Société des Acadiens et
Acadiennes du Nouveau‑Brunswick Inc. v. Canada, 2008 SCC 15, [2008] 1
S.C.R. 383; Lefebvre v.
Alberta (1993), 135 A.R.
338, leave to appeal refused, [1993] 3 S.C.R. vii; R. v. Rémillard, 2009
MBCA 112, 249 C.C.C. (3d) 44; R. v. Caron, 2007 ABQB 262, 75 Alta. L.R. (4th) 287; R. v. Marshall,
2005 SCC 43, [2005] 2 S.C.R. 220; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; R. v.
Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331; Canada (Human Rights
Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; R. v. Peel
Regional Police Service (2000), 149 C.C.C. (3d) 356; United Nurses of
Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Ordon Estate
v. Grail, [1998] 3 S.C.R. 437; R. v. Caron, 2006 ABPC 278, 416 A.R. 63.
By
Abella J.
Referred
to: British Columbia (Minister of Forests) v. Okanagan Indian Band,
2003 SCC 71, [2003] 3 S.C.R. 371; Little Sisters Book and Art Emporium v.
Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R.
38; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board),
2006 SCC 4, [2006] 1 S.C.R. 140; R. v. 974649 Ontario Inc., 2001 SCC 81,
[2001] 3 S.C.R. 575; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331; Bell
Canada v. Canada (Canadian Radio‑Television and Telecommunications Commission),
[1989] 1 S.C.R. 1722; Interprovincial Pipe Line Ltd. v. National Energy
Board, [1978] 1 F.C. 601; New Brunswick Electric Power Commission v.
Maritime Electric Co., [1985] 2 F.C. 13; Canadian Broadcasting League v.
Canadian Radio‑television and Telecommunications Commission, [1983] 1
F.C. 182, aff’d [1985] 1 S.C.R. 174; Re Dow Chemical Canada Inc. and Union
Gas Ltd. (1982), 141 D.L.R. (3d) 641, aff’d (1983), 42 O.R. (2d) 731; Children’s
Aid Society of Huron County v. P. (C.), 2002 CanLII 45644; Chrysler
Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 S.C.R. 394; Nova
Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2
S.C.R. 504; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; R. v.
Caron, 2007 ABQB 262, 75 Alta. L.R. (4th) 287; Canadian Broadcasting
Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; R. v.
Jewitt, [1985] 2 S.C.R. 128; Toronto (City) v. C.U.P.E., Local 79,
2003 SCC 63, [2003] 3 S.C.R. 77.
Statutes and Regulations Cited
Alberta Rules of Court, Alta. Reg.
390/68, rr. 600, 601.
Constitution Act, 1867, s. 133 .
Constitution Act, 1982, s. 45 .
Court of Queen’s Bench Act, R.S.A. 2000,
c. C‑31, s. 21.
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 809 , 840 .
Judicature Act, R.S.A. 2000, c. J‑2,
s. 8.
Languages Act, R.S.A. 2000, c. L‑6.
North‑West Territories Act, R.S.C.
1886, c. 50, s. 110 [rep. & sub. 1891, c. 22, s. 18].
North‑West Territories Act, 1875,
S.C. 1875, c. 49.
Provincial Offences Procedure Act,
R.S.A. 2000, c. P‑34.
Royal Proclamation (1869).
Saskatchewan Act, S.C. 1905, c. 42 [reprinted in R.S.C. 1970, App. II,
No. 20], ss. 14, 16(1).
Authors Cited
Holdsworth, Sir William Searle. A History
of English Law, vol. IV, 3rd ed. London: Methuen & Co., 1945.
Jacob, I. H. “The Inherent Jurisdiction
of the Court” (1970), 23 Curr. Legal Probs. 23.
Macaulay, Robert W., and James
L. H. Sprague. Practice and Procedure Before Administrative Tribunals,
vol. 3. Toronto: Carswell, 2004 (loose‑leaf updated 2010, release 8).
Mason, Keith. “The Inherent Jurisdiction
of the Court” (1983), 57 Austl. L.J. 449.
Morgan, George Osborne, and Horace Davey. A Treatise
on Costs in Chancery. London: Stevens, Sons, and Haynes, 1865.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th
ed. Markham, Ont.: LexisNexis, 2008.
APPEAL
from a judgment of the Alberta Court of Appeal (Hunt, Ritter and
Rowbotham JJ.A.), 2009 ABCA 34, 1 Alta. L.R. (5th) 199, 446 A.R. 362,
[2009] 6 W.W.R. 438, 241 C.C.C. (3d) 296, 185 C.R.R. (2d) 9, 71 C.P.C. (6th) 319,
[2009] A.J. No. 70 (QL), 2009 CarswellAlta 94, affirming a judgment of
Ouellette J., 2007 ABQB 632, 84 Alta. L.R. (4th) 146, 424 A.R. 377, [2008]
3 W.W.R. 628, [2007] A.J. No. 1162 (QL), 2007 CarswellAlta 1413. Appeal
dismissed.
Margaret Unsworth, Q.C., and Teresa Haykowsky, for the appellant.
Rupert Baudais, for the respondent.
Amélie Lavictoire and Kevin Shaar, for the intervener the
Commissioner of Official Languages for Canada.
Benjamin L.
Berger, for
the intervener the Canadian Civil Liberties Association.
Written
submissions only by Gwen Brodsky and Melina
Buckley, for
the interveners 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 intervener Association
canadienne‑française de l’Alberta.
Written
submissions only by Cheryl Milne and Lorne
Sossin, for
the intervener the David Asper Centre for Constitutional Rights.
The
judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron,
Rothstein and Cromwell JJ. was delivered by
[1]
Binnie J. — This appeal raises anew the difficult issue of whether and to what
extent the courts can (or should) order funding by the state of what may
broadly be described as public interest litigation. The novel twist in this
case is that an interim costs order was made by the Alberta Court of Queen’s
Bench — a superior court — in favour of an accused defending a
regulatory prosecution in the provincial court of Alberta. The
appellant Crown says that the superior court had no jurisdiction to make such
an interim costs order and that even if it did have such jurisdiction the
interim costs order was improper in any event.
[2]
The context in which this appeal arises is as
follows.
[3]
In the course of a routine prosecution for a
minor traffic offence — a wrongful left turn — the accused, Mr. Caron, claimed
the proceedings were a nullity because the court documents were uniquely in
English. He insisted that he has the right to use French in “proceedings
before the courts” of Alberta as guaranteed in 1886 by the North-West
Territories Act, R.S.C. 1886, c. 50, and the Royal Proclamation of 1869.
His position is that French language rights may not now be abrogated by the
province, and that the Alberta Languages Act, R.S.A. 2000, c. L-6, which
purported to do so, is therefore unconstitutional.
[4]
The only issue before our Court at this time is
two orders for interim costs made by the Court of Queen’s Bench. Mr. Caron’s
application came late in his trial before the provincial court when, after
about 18 months of on-again-off-again hearings, the Crown filed in reply what
Mr. Caron’s counsel described as a mountain of historical evidence. Mr. Caron
— having run out of money — established to the satisfaction of the provincial
court that he was unable to finance the rebuttal evidence necessary to complete
the trial unless he were provided with interim costs. The provincial court
made such an order. The Alberta Court of Queen’s Bench, setting aside the
provincial court order as being made without jurisdiction, nevertheless held
that it could (and did) make the interim costs orders itself. It is the
validity of the Queen’s Bench orders for interim funding of the provincial
court defence that is now before us.
[5]
The Crown takes the view that even though the
Alberta Court of Queen’s Bench identified what it regarded as an unacceptable
outcome facing the provincial court in a constitutional challenge of great
public significance, the superior court was powerless to intervene with
a funding order to keep the provincial court proceedings on the rails.
I agree that such orders must be highly exceptional and made only where the
absence of public funding would work a serious injustice to the public
interest, but I disagree with the Crown’s argument that faced with this
exceptional situation the Court of Queen’s Bench was powerless to invoke its
inherent jurisdiction to right the injustice perceived by the courts below. As
to whether that discretionary jurisdiction ought to have been exercised in
favour of Mr. Caron on the facts of this case, I defer to the affirmative
answer given by the Alberta Court of Queen’s Bench and upheld by a unanimous
Court of Appeal (2009 ABCA 34, 1 Alta. L.R. (5th) 199). Those courts have
primary responsibility for the administration of justice in the province and,
in my view, made no legal error in the exercise of their jurisdiction. I would
dismiss the appeal.
I. Overview
[6]
As a general rule, of course, it is for
Parliament and the provincial legislatures to determine if and how public
monies will be used to fund litigation against the Crown, but it has sometimes
fallen to the courts to make such determinations. To promote trial fairness in
criminal prosecutions, for instance, the courts have in narrow circumstances been prepared to order a stay of proceedings unless the
Crown funded an accused in whole or in part: R.
v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.); R. v. Rain
(1998), 223 A.R. 359 (C.A.). In the civil context, British Columbia
(Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R.
371, extended the class of civil cases for which public funding on an interim
basis could be ordered to include “special circumstances sufficient to satisfy
the court that the case is within the narrow class of cases where this
extraordinary exercise of its powers is appropriate” (para. 36). Okanagan
was based on the strong public interest in obtaining a ruling on a legal issue
of exceptional importance that not only transcended the interest of the parties
but also would, in the absence of public funding, have failed to proceed to a
resolution, creating an injustice. In Little Sisters Book and Art Emporium
v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1
S.C.R. 38 (“Little Sisters (No. 2)”), the majority affirmed that
the
injustice that would arise if the application is not granted must relate both
to the individual applicant and to the public at large. This means that a
litigant whose case, however compelling it may be, is of interest only to the
litigant will be denied an advance costs award. It does not mean, however,
that every case of interest to the public will satisfy the test. [para. 39]
Neither Okanagan nor Little Sisters (No. 2) concerned an
interim funding order made in respect of matters proceeding in a lower court.
Nevertheless, the Alberta courts were faced here with a constitutional
challenge of great importance.
[7]
At issue was (and is) a fundamental aspect of
the rule of law in Alberta. While the Crown argues that French language rights
in that province were settled by this Court in R. v. Mercure, [1988]
1 S.C.R. 234, and R. v. Paquette, [1990] 2 S.C.R. 1103, Mr. Caron was able to distinguish these
cases to the satisfaction of the Alberta
provincial court (see R. v. Caron, 2008 ABPC 232, 95 Alta. L.R.
(4th) 307). That decision on the merits was reversed by the Alberta Court of
Queen’s Bench in R. v. Caron, 2009 ABQB 745, 23 Alta. L.R. (5th) 321,
but even in upholding the Crown’s position the Queen’s Bench declared that “the
Supreme Court’s decision in Mercure does not answer the issue raised at
trial and in this appeal” (para. 143). Mr. Caron’s application for leave to
appeal on the merits was granted in part by the Alberta Court of Appeal (2010
ABCA 343, [2010] A.J. No. 1304 (QL)).
[8]
As stated, the Alberta Languages Act enacted
following this Court’s decision in Mercure purports to abolish minority
French language rights in the province. The impact of Mr. Caron’s challenge,
if ultimately successful, could be widespread and severe and include, according
to Mr. Caron, the requirement for Alberta to re-enact most if not all of its
laws in both French and English. The case, in short, has the potential (if
successful) to become an Alberta replay of the Reference re Manitoba
Language Rights, [1985] 1 S.C.R. 721, and [1992] 1 S.C.R. 212. This is
what makes the case “sufficiently special” in terms of Okanagan/Little
Sisters (No. 2).
[9]
The courts in Alberta saw sufficient merit in
Mr. Caron’s legal argument to necessitate its resolution in the broader public
interest. This was an outcome beyond the financial capacity of Mr. Caron and
the Alberta courts were not willing to allow
the issue to go unresolved for want of a champion with “deep pockets”. The
exercise of the superior court’s inherent jurisdiction to fashion an exceptional
remedy to meet highly unusual circumstances must be seen in that light.
II. Facts
[10]
On December 4, 2003, Mr. Caron was charged with
the regulatory offence of failure to make a left turn safely. If convicted, he
faced a fine of $100. Five days later, he gave notice to the provincial court
that his defence would consist of a constitutional languages challenge.
Indeed, Mr. Caron did not contest the facts of the offence and advised the
Crown that he would be presenting evidence only on the languages question. In
taking this position he followed in the well-trodden path of other minority
language advocates including Georges Forest’s English-only
parking ticket in Attorney General of Manitoba v. Forest, [1979] 2
S.C.R. 1032; the unilingual traffic summons of Roger Bilodeau in Manitoba (Bilodeau v.
Attorney General of Manitoba, [1986] 1 S.C.R. 449)
and Duncan Cross MacDonald in Quebec (MacDonald v. City of Montreal,
[1986] 1 S.C.R. 460); the English-only trial of André Mercure in Mercure and the unilingual provision of police
services available to Marie-Claire Paulin in Société des Acadiens et Acadiennes du
Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15, [2008] 1 S.C.R. 383. See also Lefebvre
v. Alberta (1993), 135 A.R. 338 (C.A.), leave to appeal refused, [1993] 3
S.C.R. vii, and R. v. Rémillard, 2009 MBCA 112, 249 C.C.C. (3d) 44.
[11]
Mr. Caron took the necessary steps to ensure
payment of his costs for what his lawyers (unrealistically, it might be said)
indicated could be a two- to five-day affair. These steps included mobilizing
his own limited funds, seeking funding from the Alberta francophone association
(Association canadienne-française de l’Alberta) (although the Association
refused to fund his case, he obtained two loans of $15,000 each from its supporters),
and securing some additional donations and $70,000 from the federal Court
Challenges Program (paid in increments as the trial lengthened from month to
month). He also solicited support over the Internet. Legal Aid was not
available.
[12]
Following presentation of the defence evidence
in March 2006, the Crown requested an adjournment in order to prepare reply
evidence from expert witnesses. Given the continuing length of the trial, Mr.
Caron made a further request of the Court Challenges Program for additional
funding, but the Program was abolished by the federal government on September
25, 2006, before additional funding could be considered. Subsequent requests
for reconsideration by Legal Aid were also unsuccessful.
[13]
The trial resumed in October 2006 to hear the
Crown’s expert evidence. The scale of the battle of the experts became clear,
and Mr. Caron’s finances left the defence unable to proceed further. The
provincial court judge had denied an Okanagan order (2006 ABPC 278, 416
A.R. 63, at para. 160), but later ordered the Crown to pay the fees of Mr.
Caron’s lawyer and his experts’ fees from and after that date pursuant to s.
24(1) of the Canadian Charter of Rights and Freedoms . Subsequently, the
Court of Queen’s Bench quashed the trial judge’s s. 24(1) order. However, the
merits of the Okanagan application were not further dealt with on appeal
because, in the view of the Queen’s Bench judge, “the learned provincial court
judge did not have jurisdiction to award Okanagan interim costs in any
event” (R. v. Caron, 2007 ABQB 262, 75 Alta. L.R. (4th) 287, at para. 131). No appeal
was taken from the decision to quash (which is therefore not before us) because
on May 16, 2007, the superior court itself rendered an interim order that the
expert fees be paid for the continuation of the trial anticipated to take place
from May 22 to June 15, 2007. On October 19, 2007, it rendered an additional
order requiring the Crown to pay Mr. Caron’s costs for the surrebuttal
component of the trial (2007 ABQB 632, 84 Alta. L.R. (4th) 146, per
Ouellette J.).
[14]
The Crown requested an adjournment, to a date
after completion of the trial to argue the question of defence counsel’s fees,
on the agreed term that such delay would not prejudice the defence application.
[15]
The trial ended on June 15, 2007. The historical
record was substantial. It included 12 witnesses, 8 of whom were
experts, 9,164 pages of transcripts and 93 exhibits (2008 ABPC 232, [2008] A.J.
No. 855 (QL), at paras. 14 and 16). As stated, the provincial court was
persuaded by this record to declare the English-only prosecution
a nullity.
[16]
The Crown now seeks to have set aside the
interim funding orders made on May 16 and
October 19, 2007. It also seeks an order requiring Mr. Caron to repay about
$120,000 provided thereunder as fees and disbursements for lawyers and experts,
presumably long since disbursed to the intended recipients.
III. Issues
[17]
The case raises two main issues:
1. Does the Court of Queen’s Bench have inherent
jurisdiction to grant an interim remedy in litigation taking place in the
provincial court?
2. If
so, were the criteria for an interim costs order met in this case?
IV. Analysis
[18]
The parties fundamentally disagree about what is
at stake in this case. The Crown characterizes the dispute as a traffic
offence which has a constitutional element, as have many criminal and
quasi-criminal cases. In Mr. Caron’s view the traffic offence is irrelevant
except as a backdrop to his constitutional
challenge. As such, he says, the ordinary rules governing costs in traffic
court are irrelevant to the outcome of the appeal. The courts in Alberta
essentially agreed with Mr. Caron on this point and I believe they were correct
in that approach.
[19]
This being said, the history of this litigation
— with its numerous adjournments, mutual recriminations about “trial by ambush”
and periodic trips to the appellate courts — demonstrates once again that a
prosecution in a provincial court does not generally provide, from a procedural
point of view, an efficient institutional forum to resolve this sort of major
constitutional litigation: R. v. Marshall,
2005 SCC 43, [2005] 2 S.C.R. 220, at paras. 142-44. There is no
mutuality between the prosecution and the defence in the discovery of documents
or pre-trial disclosure. The procedural powers of the provincial court are
limited (although, as stated in para. 13, above, the
quashing of the provincial court order for costs for want of jurisdiction was
not appealed and we therefore refrain from expressing any opinion on its
validity). Nevertheless, Mr. Caron’s having announced his intention to
use the prosecution as a springboard to launch his constitutional challenge to
the validity of the Alberta Languages Act, the Crown persisted in the
provincial court rather than seeking to have the constitutional question (as
opposed to the minor driving infraction) brought before the superior court.
[20]
The Crown agrees that if the language issue had
been litigated in the superior court (perhaps as a direct challenge to the
Alberta Languages Act), that court would have had jurisdiction in
relation to a case pending before it to make a costs order in the terms now
complained of.
[21]
The provincial court was confronted with a
potential failure of justice once the unexpected length of the trial had
exhausted Mr. Caron’s financial resources. By that time, substantial trial
time and costs had already been expended, including the substantial public
monies provided under the Court Challenges Program. In mid-trial the
provincial court, so to speak, had a tiger by the tail. The Crown insisted on
pursuing the prosecution in provincial court; Mr. Caron insisted on his French
language defence. Neither side expressed any interest in a stay of
proceedings.
[22]
The courts in Alberta were clearly concerned
lest the Crown achieve, by pressing on with
the prosecution in the provincial court, an unfair advantage (“lop-sided”,
Ritter J.A. called it) over the accused in the creation of the crucial factual
record on which an important constitutional issue would be determined. A
lopsided trial would not have put the languages issue
to rest. Mr. Caron’s challenge was considered by the courts below to have merit
and in their view it was in the interest of all Albertans that the challenge be
properly dealt with.
[23]
I should make it clear that the present decision does not constitute
a general invitation for applications to fund
the defence of ordinary criminal cases where constitutional (including Charter )
issues happen to be raised. In those cases
the gravamen is truly the criminal offence. Here the traffic court context is
simply background to the constitutional fight. A more appropriate analogy, as
will be discussed, is the Okanagan/Little Sisters (No. 2)
paradigm for public interest funding in a civil case.
A. Does the
Inherent Jurisdiction of the Alberta Court of Queen’s Bench Extend to Making
the Interim Costs Order in Respect of Proceedings in the Provincial Court?
[24]
The inherent jurisdiction of the provincial
superior courts, is broadly defined as “a residual source of powers, which the
court may draw upon as necessary whenever it is just or equitable to do so”: I.
H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal
Probs. 23, at p. 51. These powers are derived “not from any statute or
rule of law, but from the very nature of the court as a superior court of law”
(Jacob, at p. 27) to enable “the judiciary to uphold, to protect and to fulfil
the judicial function of administering justice according to law in a regular,
orderly and effective manner” (p. 28). In equally broad language Lamer C.J.,
citing the Jacob analysis with approval (MacMillan Bloedel Ltd. v.
Simpson, [1995] 4 S.C.R. 725, at paras. 29-30), referred to “those
powers which are essential to the administration of justice and the maintenance
of the rule of law”, at para. 38. See also R. v. Cunningham, 2010 SCC
10, [2010] 1 S.C.R. 331, at para. 18, per Rothstein J., relying on the
Jacob analysis, and Canada (Human Rights
Commission) v. Canadian Liberty Net,
[1998] 1 S.C.R. 626, at paras. 29-32.
[25]
One of the earliest manifestations of the
superior court’s inherent jurisdiction was the appointment of counsel to
represent impecunious litigants in forma pauperis (W. S. Holdsworth, A
History of English Law, vol. IV (3rd ed. 1945), at p. 538, and G. O. Morgan
and H. Davey, A Treatise on Costs in Chancery (1865), at p. 268).
[26]
The Crown argues that whatever may be a superior
court’s inherent jurisdiction in relation to matters pending before it, such
jurisdiction cannot extend to an order of interim funding of a litigant in a
matter pending in the provincial court. However, as Jacob points out, superior
courts do possess inherent jurisdiction “to render assistance to
inferior courts to enable them to administer justice fully and effectively” (p.
48). For example, superior courts have long intervened in respect of contempt
not committed “in the face of” the inferior court because “the inferior courts
have not the power to protect themselves” (p. 48). See,
e.g., R. v. Peel Regional Police Service (2000), 149 C.C.C. (3d) 356
(Ont. S.C.J.), and United Nurses of Alberta v. Alberta (Attorney General),
[1992] 1 S.C.R. 901. In the same vein, Mr. Keith Mason, Q.C., a former
President of the New South Wales Court of Appeal, has written in an article
titled “The Inherent Jurisdiction of the Court” (1983), 57 Austl. L.J.
449, that
[i]t is not surprising that a general
concern with the “due administration of justice” has been invoked to justify
the Supreme Court creating or enforcing procedural rights applicable to
other courts and tribunals. Such helpful intervention has been offered where
the other body has been considered powerless to act or where undue expense
or delay might be caused if parties were forced to resort to it.
. . .
Many
of the more recent developments of administrative law can be related to the
assumption by superior courts of a general inherent jurisdiction to use their process
in aid of the proper administration of justice. [Emphasis added; p.
456.]
The Mason article was also cited with approval by Lamer C.J. in MacMillan
Bloedel (para. 33).
[27]
Canadian courts have, from time to time,
exercised their inherent jurisdiction to render assistance to inferior courts
as circumstances required. Novelty has not been treated as a barrier to
necessary action. In the Peel Regional Police case, the superior court cited the Regional Police
Service and the Police Services Board for contempt based on repeated delays in
transferring prisoners to court rooms for hearings. This caused days of court
time to be lost and inconvenienced lawyers, witnesses, and members of the
public (paras. 20-28). The delays were said to undermine the rule of law.
Citing MacMillan Bloedel, the court explained the basis for its action:
This
court acted in order to terminate the systemic delays in the timely delivery of
prisoners to courtrooms throughout the Peel Courthouse. The court was desirous
of averting a multiplicity of coercive proceedings. As well, the superior court was conscious of its duty to
assist provincially created courts to restore the paramountcy of the rule of
law . . . . [Emphasis added; para. 68.]
[28]
In United Nurses of Alberta, this Court
upheld a criminal contempt order made by the superior court against a union
that defied a ruling issued by the province’s Labour Relations Board. The
superior court relied on its inherent jurisdiction to come to the aid of the
tribunal.
[29]
While contempt proceedings are the best known
form of “assistance to inferior courts”, the inherent jurisdiction of the
superior court is not so limited. Other examples include “the issue of a
subpoena to attend and give evidence; and to exercise general superintendence
over the proceedings of inferior courts, e.g., to admit to bail” (Jacob,
at pp. 48-49). In summary, Jacob states, “The
inherent jurisdiction of the court may be invoked in an apparently
inexhaustible variety of circumstances and may be exercised in different
ways” (p. 23 (emphasis added)). I agree with this analysis. A “categories” approach is not appropriate.
[30]
Of course the very plenitude of this inherent
jurisdiction requires that it be exercised sparingly and with caution. In the
case of inferior tribunals, the superior court may render “assistance” (not
meddle), but only in circumstances where the inferior tribunals are powerless
to act and it is essential to avoid an injustice that action be taken. This
requirement is consistent with the “sufficiently special” circumstances
required for interim costs orders by Little Sisters (No. 2), at para.
37, as will be discussed.
[31]
Accordingly, I would not accept the argument
that the apparent novelty of the interim costs order in this case is, on
account of its novelty, beyond the inherent jurisdiction of the Court of
Queen’s Bench.
[32]
The Crown argues that even if the making of such
an interim costs order could in theory fall within the inherent
jurisdiction of the superior court, such jurisdiction has been taken away by
statutory costs provisions. In this respect the Crown relies on the Provincial
Offences Procedure Act, R.S.A. 2000, c. P-34, and the Criminal Code,
R.S.C. 1985, c. C-46, ss. 809 and 840 , which provides for example $4 a day for
witnesses. The Crown argues that while not expressly limited, the inherent
jurisdiction of the Court of Queen’s Bench is implicitly ousted by these
enactments. However on this point, as well, the Jacob analysis is
helpful:
.
. . the court may exercise its inherent jurisdiction even in respect of matters
which are regulated by statute or by rule of court, so long as it can do so
without contravening any statutory provision. [Emphasis added; p. 24.]
I agree with Jacob on this point as
well.
[33]
The Crown’s premise here and elsewhere in its
argument is that this case is an ordinary “garden variety” regulatory
proceeding of the sort to which these provincial
court costs provisions were intended to apply, a premise which I cannot
accept. The provincial court was confronted with language rights litigation of
major significance that after months of trial had reached the point of
collapse. The intervention of the superior court was not a matter of routine.
It was part of a salvage operation to avoid months of effort, costs and
judicial resources from being thrown away.
[34]
The Crown also relies on various statutes
dealing with costs in matters pending before the Court of Queen’s Bench itself,
including the Court of Queen’s Bench Act, R.S.A. 2000, c. C-31, s. 21,
the Judicature Act, R.S.A. 2000, c. J-2, s. 8, and the Alberta Rules
of Court, Alta. Reg. 390/68, rr. 600 and 601. Certainly these enactments
authorize the award of costs in various circumstances, but words of
authorization in this connection should not be read as words limiting the
court’s inherent jurisdiction to do what is essential “to fulfil the judicial
function of administering justice according to law in a regular, orderly and
effective manner” (Jacob, at p. 28). It would be contrary to all authority to
draw a negative inference against the inherent jurisdiction of the superior
court based on “implication” and conjecture about legislative intent: Ordon
Estate v. Grail, [1998] 3 S.C.R. 437.
[35]
I am satisfied 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.
B. Criteria
for the Grant of a Public Interest Funding Order
[36]
Although Mr. Caron seeks what he calls an Okanagan
order, the Crown points out that there are many distinctions between that case
and the one before us. Okanagan was a civil case. The fight here arose
in the context of a quasi-criminal proceeding and, generally speaking, as the
Crown emphasizes, the costs regimes in civil and criminal cases are very
different. Secondly, Okanagan did not involve the exercise of the
court’s inherent jurisdiction, but addressed the equitable exercise of a
statutory costs authority. Thirdly, the original Okanagan order was
made in relation to proceedings before the court that ordered the funding,
namely the superior court of British Columbia. It dealt with an award of
advance costs to a plaintiff, not an accused. The same distinctions apply to Little
Sisters (No. 2).
[37]
The Crown argues that the courts cannot create
an alternative legal aid scheme by judicial fiat. Nor, says the Crown, can the
courts judicially reinstate the Court Challenges Program. These points are
valid so far as they go, but in my opinion they do not control the outcome of
the appeal.
[38]
Clearly, this case is not Okanagan where
the Court viewed the funding issue from the perspective of a proposed civil
trial not yet commenced. We are presented with the issue of public interest
funding in a different context. Nevertheless, Okanagan/Little
Sisters (No. 2) provide important guidance to the general paradigm of
public interest funding. In those cases, as earlier emphasized in the
discussion of inherent jurisdiction, the fundamental purpose (and limit) on
judicial intervention is to do only what is essential to avoid an injustice.
[39]
The Okanagan criteria governing the discretionary
award of interim (or “advanced”) costs are three in number, as formulated by
LeBel J., at para. 40:
1. The
party seeking interim costs genuinely cannot afford to pay for the litigation,
and no other realistic option exists for bringing the issues to trial — in
short, the litigation would be unable to proceed if the order were not made.
2. The
claim to be adjudicated is prima facie meritorious; that is, the claim
is at least of sufficient merit that it is contrary to the interests of justice
for the opportunity to pursue the case to be forfeited just because the
litigant lacks financial means.
3. The
issues raised transcend the individual interests of the particular litigant,
are of public importance, and have not been resolved in previous cases.
Even where
these criteria are met there is no “right” to a funding order. As stated by
Bastarache and LeBel JJ. for the majority in Little Sisters (No. 2):
In analysing
these requirements, the court must decide, with a view to all the
circumstances, whether the case is sufficiently special that it would be
contrary to the interests of justice to deny the advance costs application,
or whether it should consider other methods to facilitate the hearing of the
case. The discretion enjoyed by the court affords it an opportunity to
consider all relevant factors that arise on the facts. [Emphasis added; para.
37.]
While these criteria were formulated in the very different circumstances
of Okanagan and Little Sisters (No. 2), in my opinion they apply
as well to help determine whether the costs intervention of the Court of
Queen’s Bench was essential to enable the provincial court to “administer
justice fully and effectively”, and may therefore be said to fall within the
superior court’s inherent jurisdiction.
C. Application
of the Public Funding Criteria to the Present
Case
[40]
The courts below addressed each of the above
criteria.
(1) Impecunious Litigant
[41]
As to Mr. Caron’s financial circumstances, the
superior court judge concluded that, while he was willing to expend (and had
expended) his own and borrowed money (as well as funding from the Court
Challenges Program) to the limit, Mr. Caron’s resources had been exhausted by
the time the applications for the orders in issue were made. He could not
finance the last leg of his protracted trial. The Crown argues that Mr. Caron
ought to have pursued a more aggressive fundraising campaign, particularly
within Alberta’s francophone community. The Queen’s Bench judge, on the
contrary, was impressed with the “responsible manner” in which Mr. Caron had
pulled together finances for the anticipated length of trial and its unexpected
continuances. However, as the scope of the expert evidence continued to
expand, it was not “realistically possible” for him to launch a formal
fundraising campaign given the trial schedule and its demands (2007 ABQB 632, [2007]
A.J. No. 1162 (QL), at para. 30). The Queen’s Bench judge declared himself
“satisfied that Mr. Caron has no realistic means of paying the fees resulting
from this litigation, and that all other possibilities for funding have been
canvassed, but in vain” (para. 31). The Crown’s objection on this point was
not accepted in the courts below and those courts made
no palpable error in reaching the conclusion they did.
(2) Prima
Facie Meritorious Case
[42]
The order for interim costs in this case did not
prejudge the outcome. Mr. Caron, however, persuaded the Alberta courts that
his challenge differs from Mercure, Paquette, and Lefebvre.
In Mercure, it will be recalled, minority language rights on the
prairies were addressed in terms of the North-West Territories Act, 1875,
S.C. 1875, c. 49. The key provision, which is essentially the same as s. 133
of the Constitution Act, 1867 , was reproduced in the 1886 consolidation
as s. 110 (rep. & sub. 1891, c. 22, s. 18):
110. Either
the English or the French language may be used by any person in the debates
of the Legislative Assembly of the Territories and in the proceedings before
the courts; and both those languages shall be used in the records and
journals of such Assembly; and all ordinances made under this Act shall
be printed in both those languages: Provided, however, that after the next
general election of the Legislative Assembly, such Assembly may, by ordinance
or otherwise, regulate its proceedings, and the manner of recording and
publishing the same; and the regulations so made shall be embodied in a
proclamation which shall be forthwith made and published by the Lieutenant
Governor in conformity with the law, and thereafter shall have full force and
effect.
Mercure itself held that
in Saskatchewan this provision was subject to repeal by
virtue both of ss. 14 and 16(1) of the Saskatchewan Act and s. 45 of the
Constitution Act, 1982 (p. 271).
[43]
Mr. Caron’s contention is that the Mercure
case did not consider much of the relevant historical evidence including, in
particular, the Royal Proclamation of December 6, 1869, annexing to
Canada what was then the North-West Territories, whose effect was characterized
by the provincial court judge as follows:
[translation]
I therefore believe that the proclamation had to be constitutional to appease
the Métis by giving them greater certainty. A political guarantee can be
cancelled more easily than a constitutional guarantee. . . . In
my opinion, in light of the historical context, the proclamation is a
constitutional document. This means that “all your civil . . . rights”
mentioned in the proclamation are protected by the Constitution. As I held
above, relying on the historical evidence, the expression “civil
rights” was broad enough to include language rights, which means that the
same protection applies to language rights.
(2008 ABPC 232, 95 Alta. L.R. (4th) 307, at para. 561)
Whether or not this view of the
1869 Proclamation survives final appellate consideration is not, of course, the
issue. All the courts below recognized that there was prima facie merit
to Mr. Caron’s claim (R. v. Caron, 2006 ABPC 278, 416 A.R. 63, at para.
149; 2007 ABQB 632, 84 Alta. L.R. (4th) 146, at paras. 32-36 and 40; 2009 ABCA
34, 1 Alta. L.R. (5th) 199, at paras. 58-61). It would, in the words of Okanagan,
be contrary to the interest of justice if the proper resolution of this case on
the merits was forfeited just because Mr. Caron — the putative standard bearer
for Franco-Albertans in this matter — lacked the financial means to complete
what he started.
(3) Public
Importance
[44]
The public importance aspect of the Okanagan test
has three elements, namely that “[t]he issues raised transcend the individual
interests of the particular litigant, are of public importance, and have not
been resolved in previous cases” (para. 40). Not every constitutional case
meets these criteria, as it could not be said in each and every case that it is
“sufficiently special that it would be contrary to the interests of justice to
deny the advance costs application” (Little Sisters (No. 2), para.
37). What is “sufficiently special” about this case is that it constitutes an
attack of prima facie merit (as that term is used in Okanagan) on
the validity of the entire corpus of Alberta’s unilingual statute books. The
impact on Alberta legislation, if Mr. Caron were to succeed, could be extremely
serious and the resulting problems ought, if it becomes necessary to do so, to be addressed as quickly as possible. A lopsided
contest in which the challenger, by reason of impecuniosity, had to abandon his
defence in the midstream of the trial would not lay the issue to rest. The
result of Mr. Caron’s collapse at the final stage of the trial would simply be
that the costs and judicial resources already expended on resolving this issue
by the public, as well as by Mr. Caron, would be thrown away.
[45]
The injury created by continuing uncertainty
about French language rights in Alberta transcends Mr. Caron’s particular
situation and risks injury to the broader Alberta public interest. The Alberta
courts have taken the view that the status and effect of the 1869 Proclamation
was not fully dealt with in the previous litigation. It is in the public
interest that it be dealt with now. This makes the case “sufficiently special” under the Okanagan/Little
Sisters (No. 2) criteria, in my opinion.
D. The
Exercise of the Superior Court’s Inherent
Jurisdiction
[46]
The proper perspective from which this case is to be viewed (and was
viewed by the Court of Queen’s Bench) is that of the provincial court judge who
was on the last lap of a complex trial, with substantial costs incurred
already, and months of court time under his belt, facing the prospect that all
of this cost and effort would be wasted —
despite its constitutional significance — because of Mr. Caron’s
impecuniosity. I believe that in these very unusual circumstances it was open
to the Queen’s Bench judge to determine, in the exercise of his discretion,
whether or not to come to the assistance of the provincial court with the
interim costs order, and that such an order was, in the words of MacMillan
Bloedel, “essential to the administration of justice and the maintenance of
the rule of law” (para. 38). Although he did not use these words, they
describe in my opinion the tenor of his judgment.
[47]
Such funding orders, if made, “should be
carefully fashioned and reviewed over the course of the proceedings to ensure
that concerns about access to justice are balanced against the need to
encourage the reasonable and efficient conduct of litigation, which is also one
of the purposes of costs awards” (Okanagan, at para. 41). In the
present case, the judges were working within the confines of a trial in
progress. Nevertheless, the order of Ouellette J. in the Court of Queen’s
Bench did put a cap on allowable hours for the expert witnesses, and disallowed
a payment of $3,504.60 for a “temporary assistant”. It seems that Judge Wenden
in the provincial court was working with invoices not in the record before us.
In his October 18, 2006 order (A.R., vol. 1, at pp. 2-13), Wenden Prov. Ct. J.
clearly refused to make an ex ante blank cheque. On August 2, 2006, he
ordered the Crown to pay Mr. Caron’s already incurred (and therefore
quantified) legal fees. All in all, I accept the
conclusion of the Court of Appeal that the financial controls in place were adequate and met the Okanagan
standard.
V. Conclusion
[48]
In my view, the Alberta Court of Queen’s Bench
possessed the inherent jurisdiction to make the funding order that it did in
respect of proceedings in the provincial court. There was no error of
principle in taking into consideration the Okanagan/Little Sisters
(No. 2) criteria in the exercise of that inherent jurisdiction. On the
merits, I defer to what seems to me to be the reasonable exercise of the
discretion by the Queen’s Bench judge. I would therefore affirm the decision
of the Alberta Court of Appeal and dismiss the appeal.
[49]
Although costs are not
generally available in quasi-criminal proceedings (absent special circumstances
such as Crown misconduct of which there is none here), this case is more in the
nature of regular constitutional litigation conducted (as discussed) by an impecunious plaintiff for the benefit
of the Franco-Albertan community generally. In these unusual circumstances,
Mr. Caron should have his costs on a party and party basis in this Court.
The
following are the reasons delivered by
[50]
Abella J. — I agree with Binnie J. that the
unique circumstances of this case appropriately attract the award of interim
public interest funding based on the principles developed by this Court in British
Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003]
3 S.C.R. 371, and Little Sisters Book and Art Emporium v. Canada
(Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38. I
am concerned, however, that the reasons may be seen to unduly expand the scope
of the common law authority of a superior court in the exercise of its inherent
jurisdiction.
[51]
In particular, it is
important that these reasons not be seen to
encourage the undue expansion of a superior court’s inherent
jurisdiction into matters this Court has increasingly come to see as part of a
statutory court’s implied authority to do what
is necessary, in the fulfilment of its mandate,
to administer justice fully and effectively. (See ATCO Gas and Pipelines
Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R.
140, at para. 51; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3
S.C.R. 575, at paras. 70 and 71 (“Dunedin”); R. v. Cunningham,
2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19; Bell Canada v. Canada
(Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R.
1722. See also Interprovincial
Pipe Line Ltd. v. National Energy Board, [1978] 1 F.C. 601 (C.A.); New Brunswick Electric Power
Commission v. Maritime Electric Co., [1985] 2 F.C. 13 (C.A.); Canadian
Broadcasting League v. Canadian Radio-television and Telecommunications
Commission, [1983] 1 F.C. 182 (C.A.), aff’d [1985] 1 S.C.R. 174; Re
Dow Chemical Canada Inc. and Union Gas Ltd. (1982), 141 D.L.R. (3d) 641 (Ont. Div. Ct.), aff’d (1983), 42
O.R. (2d) 731 (C.A.); Children’s Aid Society of
Huron County v. P. (C.), 2002 CanLII
45644 (Ont. S.C.J.); Chrysler Canada Ltd. v. Canada (Competition Tribunal),
[1992] 2 S.C.R. 394; R. W. Macaulay and J. L. H. Sprague, Practice and
Procedure Before Administrative Tribunals (loose-leaf), vol. 3, at p. 29-1; Ruth Sullivan, Sullivan on
the Construction of Statutes (2008), at pp. 290-91.)
[52]
The superior court’s inherent jurisdiction, it
seems to me, should not be seen as a broad plenary power to “assist”, but
should be interpreted consistently with this Court’s evolving jurisprudence
about the role, authority and mandate of statutory courts and tribunals. This includes an awareness of the need to avoid bifurcated
proceedings in all but exceptional cases. (See Nova Scotia (Workers’
Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para.
29; and, R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 79.) The
fundamental purpose of such intervention by the superior court must be limited, as Binnie J. points out, to “what
is essential to avoid an injustice” (para. 38). For
the first time, that inherent jurisdiction was, interpreted in this case to include the ability to make an
interim costs award in a proceeding before a
statutory court or tribunal.
[53]
It is worth remembering, as
Binnie J. acknowledged, that this exercise of inherent jurisdiction was based on the premise that the provincial court lacked the
jurisdiction to make the order. Regrettably that piece in the jurisdictional
puzzle is not, strictly speaking, before us. Mr. Caron had made an
unsuccessful application for Okanagan funding directly to the provincial
court. The court concluded that while the Okanagan criteria were met, Okanagan
costs could not be ordered by the provincial court. That decision was
essentially undisturbed by the Court of Queen’s Bench, 2007 ABQB 262, 75 Alta.
L.R. (4th) 287, per Marceau J. and was not appealed by Mr. Caron. He
chose instead to seek his funding by way of a new claim to the Queen’s Bench,
seeking the exercise of its inherent jurisdiction as a superior court to make
the order. As a result, the question of whether a statutory court or tribunal
has jurisdiction to order Okanagan costs will have to be determined in a
future case.
[54]
That leaves us in the problematic position of
having to decide Mr. Caron’s ability to obtain funding and continue with this
litigation as if no other jurisdictional course were available to him.
I therefore simply raise a cautionary note: this Court’s evolutionary
acknowledgment of the independence, integrity and expertise of statutory courts
and tribunals may well be inconsistent with an approach that has the effect of
expanding the reach of a superior court’s common law inherent jurisdiction into matters of which a statutory court or tribunal is
seized. When considering the proper limits of
a superior court’s inherent jurisdiction, any such inquiry should
reconcile the common law scope of inherent
jurisdiction with the implied legislative mandate of a statutory court or tribunal, to control its own
process to the extent necessary to prevent an injustice and accomplish its statutory objectives. (See Cunningham, at
para. 19; ATCO, at para. 51; Canadian
Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R.
480, at para. 37; R. v. Jewitt, [1985] 2 S.C.R. 128; and Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para.
35.) The inability to order
funding in the very limited circumstances contemplated by Okanagan and Little Sisters could well frustrate the ability of the provincial courts and tribunals
to continue to hear potentially meritorious cases of public importance. As McLachlin C.J. observed in Dunedin,
costs awards are significant remedial tools and
“integrally connected to the court’s control of
its trial process” (para. 81).
[55]
With the above
caution in mind, therefore, in the exceptional
circumstances of this case I agree with Binnie J. that the award of Okanagan
costs should be upheld and the appeal dismissed.
Appeal
dismissed with costs.
Solicitor for the appellant: Attorney
General of Alberta, Edmonton.
Solicitors for the
respondent: Balfour Moss, Regina.
Solicitor for the intervener the Commissioner of
Official Languages for Canada: Office of the Commissioner of
Official Languages, Ottawa.
Solicitors for the intervener the Canadian Civil
Liberties Association: Arvay Finlay, Vancouver.
Solicitors for the interveners 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: Camp Fiorante Matthews, Vancouver.
Solicitors for the intervener Association
canadienne‑française de l’Alberta: Heenan Blaikie, Ottawa.
Solicitor for the intervener the David Asper
Centre for Constitutional Rights: University of Toronto, Toronto.