Speaker's Corner: Caron shows need for public-interest funding

On Feb. 4, the Supreme Court of Canada handed down its decision in R. v. Caron in which it ruled unanimously that superior courts have inherent jurisdiction to require the state, in special circumstances, to fund public-interest litigation in quasi-criminal contexts as well as in civil matters.

The power of the superior courts to make such orders, moreover, now extends to litigation in the provincial courts as well. In Caron, the court upheld an interim costs order by the Alberta Court of Queen’s Bench that had compelled the Crown to pay $120,000 worth of fees and disbursements incurred by Gilles Caron for lawyers and experts to defend a minor traffic offence prosecution in the provincial court. In the course of the matter, Caron raised a constitutional challenge.

At issue was not the $100 fine for a wrongful left turn, which Caron had undertaken to pay, but his challenge that the entire body of Alberta’s statute books were constitutionally invalid for being in English only. That challenge continues before the Alberta Court of Appeal.

In determining whether to order public-interest funding in Caron, the top court turned to the three-part test it had 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).

In particular, it looked at whether the party seeking interim costs genuinely cannot afford to pay and no other realistic option exists for funding; the claim is prima facie meritorious in the sense that it would appear to be contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks the financial means; and the matters raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

The court emphasized that even where the criteria are met, there will be no right to a funding order in any particular case. A funding order, arising as it does from the superior court’s inherent jurisdiction to control the process before it, is inherently discretionary and exceptional and will be made only in situations in which, considering all of the circumstances, the case is sufficiently special that it would be contrary to the interests of justice to deny the advance costs application.  

The court also stressed that adequate financial controls are appropriate and that interim costs awards should be carefully fashioned and reviewed throughout the proceedings to ensure a balance between access to justice and encouraging the reasonable and efficient conduct of litigation.  

Caron was a sufficiently special case because it was a major constitutional challenge that if successful would have a widespread and severe impact, including possibly requiring Alberta to re-enact most if not all of its laws in both French and English; the trial was in its final stages and, without the interim costs order, Caron could not finance the evidence necessary to reply to the extensive evidence filed by the Crown; legal aid was unavailable, and Caron had spent his own limited funds and exhausted donations and public funding; judicial resources would have been thrown away were the action to come to a halt in its late stages due to a lack of financial resources; and uncertainty about French-language rights in Alberta would have continued when it was in the public interest that it be resolved at Caron’s trial.

The court was satisfied that financial controls were adequate, as the order dealt with costs actually incurred. With certain costs being disallowed, there was clearly no blank cheque to Caron.

While it should not be expected that the courts will authorize a flood of state-funded constitutional litigation following the Caron decision, it is significant that the top court has stated that it is within the power of the superior courts to ensure, through ordering interim funding, that constitutional challenges of great importance will not “go unresolved for want of champion with deep pockets.”

This represents an important and, in some corners, no doubt controversial affirmation of the role and power of the courts in protecting rights and freedoms against the exercise of state power and in ensuring respect for the Constitution even if it means requiring the state to partly foot the litigant’s bill.

Public-interest and equity-seeking groups will no doubt celebrate Caron’s victory on the public-funding issue.

Like Caron, who faced difficulty raising funds for his language-rights challenge even with help from private donors and a now-discontinued Court Challenges program, rights-seeking groups have faced greater difficulty with access to justice as a result of program cuts and the narrowing of legal aid services in recent years.

Notably, the fact that legal aid was not available to Caron and that the government discontinued the Court Challenges program in the midst of his trial were material to the lower court’s reasoning and the Supreme Court’s affirmation that Caron had met the test.

Even with high thresholds for such orders, we will expect to see a rise in the number of court applications for such costs in the coming months. In turn, legislatures would do well to respond to the ruling by revisiting the benefits of public-interest funding programs.

As the court implied in Caron, it is preferable for Parliament and the provincial legislatures to design programs to disburse public monies to fund meritorious litigation challenging laws and policies that are constitutionally suspect rather than relying on the ad hoc exercise of the inherent jurisdiction of the courts.

Structured public funding for constitutional challenges benefits not only the public, which gains greater access to justice, but also the legislatures and executives as it facilitates greater certainty, predictability, and control with established and uniform criteria and advance budgets.

Caron, therefore, may represent a classic case of dialogue between the courts and the legislatures. The courts have spoken about the need for public funding for important public-interest litigation. It will be interesting to see whether and how the legislatures talk back.

Allison Thornton and Shashu Clacken both practise at Koch Thornton LLP. They can be reached at [email protected] and [email protected].

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