Kwikwetlem First Nation v. British Columbia (Utilities Commission)

The recent case of Kwikwetlem First Nation v. British Columbia (Utilities Commission) raises the issue of the duty to consult Aboriginal peoples before undertaking projects that may affect their rights or title. The case was an appeal to the British Columbia Court of Appeal on behalf of Kwikwetlam First Nation, Nlaka’pamux Nation, and the Okanagan Nation.[1]

Because of the growth in Vancouver’s lower mainland population, BC Hydro, along with the British Columbia Transmission Corporation (BCTC), underwent a consultation process to decide how best to meet the growing energy needs of their customers.[2] After considering a number of options, BCTC decided that it was the most cost-effective option to build a new transmission line from Merritt to Coquitlam, a project dubbed ILM.[3] However, before construction on the new line could begin they had to obtain two permits: one from the Environmental Assessment Office (EAO) and one from the British Columbia Utilities Commission.[4] Both of these are Crown agencies charged with enforcing government regulations, regulations that in this case required consultation with First Nations if it is deemed that their rights might be affected by Crown corporations.

Aboriginal and treaty rights are “recognized and affirmed” in section 35 of the Constitution Act, 1982;[5] under this section, the Supreme Court of Canada has found that the Crown has a duty to consult First Nations before infringing on their rights or title.[6] The question before the appeals court in this case was whether or not a duty to consult arose, and if so, which of these Crown agencies was required to discharge the onus of the duty to consult. BC Hydro and BCTC argued that the decision should be left to the EAO whereas the appellants, led by the Kwikwetlam First Nation, argued that the onus must is on the British Columbia Utilities Commission because it is a quasi-judicial board that has the proper power and regulatory authority to uphold the honour of the Crown.[7] It was argued that the EAO had been deprived of much of its regulatory power and was primarily concerned with the narrow issue of environmental protection.[8] The utilities commission took the stance that either of the two Crown agencies could fulfill the duty to consult. It then issued a certificate of public convenience and necessity (CPCN) over the objections of the First Nations and placed the duty to consult with the lesser qualified EAO.[9]

The B.C. Court of Appeal found that the Commission had to consider whether the Crown had a constitutional duty to consult with regard to the ILM project, and if so, to determine the scope of that duty, and whether it was fulfilled.[10] The court held that the utilities commission had erred in law when it failed to consider the First Nations challenge to the consultation process.[11] As a result, the court ordered the suspension of the CPCN that would have allowed the project to proceed, and ordered the utilities commission to reconsider the concerns of the affected First Nations before the suspension would be nullified.[12]

The decision of the court in this case helped clarify the Crown’s duty to consult. After finding that the proposed power line project had the potential to “profoundly affect the appellants’ Aboriginal interests,” the court said that “consultation requires an interactive process with efforts by both the Crown actor and the potentially affected first Nations… [and] it may require the Crown to make changes to its proposed actions.”[13] Justice Huddart went on to add that “if consultation is to be meaningful, it must take place when the project is being defined until the project is completed.”[14]

The power line constructed through the appellants’ lands some decades earlier had been built without any consultation to the detriment of the affected First Nations.[15] This decision shows how Aboriginal rights have been strengthened by the courts in the past two decades.

 

[2] Ibid. at para. 2.
[3] Ibid. at para. 2.
[4] Ibid. at para. 19.
[5] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11.
[6] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII);Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 (CanLII).
[7] Supra note 1 at paras. 8, 20 and 23.
[8] Supra note 1 at para. 44.
[9] Ibid.
[10] Ibid. at para 13.
[11] Ibid. at para. 14.
[12] Ibid. at para. 15.
[13] Ibid. at paras. 67-68.
[14] Ibid. at para. 70.
[15] Ibid. at para. 67.

R. v. White Appeal

On January 29th, the Supreme Court of Canada granted leave to appeal an Alberta Court of Appeal decision that upheld a mandatory publication ban in bail proceedings.[1]

Michael White, an Edmontonian charged with the second-degree murder of his wife, applied for and received a publication ban under section 517 of Canada’s Criminal Code.[2] This section provides for a mandatory publication ban on bail proceedings upon the request of an accused. Several media outlets brought an application challenging the constitutionality of section 517, arguing the section unjustifiably violated their freedom of expression as guaranteed by section 2(b) of the Charter of Rights and Freedoms.[3]

The Court of Queen’s Bench held that the mandatory ban unjustifiably violated the Charter and ordered section 517 to be read as if it opened with the words "Where a jury trial is possible."  The court also ordered the words "and shall on application of the accused" be struck out, but it deferred this aspect of the order for one year to allow Parliament to address the issue.[4]  The court concluded there to be no rational connection between the infringement on the media’s freedom of expression and the objective of protecting an accused’s right to a fair trial by an impartial jury.[5]  The court also held the Crown failed to show both that the mandatory publication ban was the least intrusive means available to meet the legislature’s objective, and that the salutary effects of the ban were proportionate to its deleterious effects.[6]

Michael White appealed the decision to the Alberta Court of Appeal. That court unanimously held the infringement of section 2(b) of the Charter was justified under section 1 and set aside the Queen’s Bench decision.[7]  The court determined that a rational connection between the challenged provision and the legislative objective was present, and the impairment of section 2(b) was minimal, because section 517 was not a “publication ban,” but merely a “publication deferral” until after the trial was complete.[8]  The court also held the benefits of restricting publication outweighed the negative effects of the restriction on expression in this context, because a fair trial and fair access to bail were also Charter rights.[9]

Resources:

Section 517 of the Criminal Code reads:

517. (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

  1. if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
  2. if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Further Reading:

Chris Younker, “Freedom vs. Privacy” (18 February 2009) online: Centre for Constitutional Studies.

[1] R. v. White, SCC Case Information.
[2] Criminal Code of Canada, R.S.C. 1985, c. C-46 (CanLII).
[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11 (CanLII).
[4] Ibid. at paras. 113, 129.
[5] R. v. White, 2007 ABQB 359 at para. 82 (CanLII).
[6] Ibid. at paras. 83, 102.
[7] R. v. White, 2008 ABCA 294 at para. 58 (CanLII).
[8] Ibid. at paras. 42, 46.
[9] Ibid. at para. 57.

Judges will also suffer from the Troubled Economic Times

Federally appointed judges will feel the effects of troubled economic times just like most other Canadians. Superior court judges have been told the salary restraints placed upon other public servants would also apply to them.[1]

In 1998, the Supreme Court of Canada dealt with the issue of whether salary reductions for provincial judges compromised their judicial independence in Reference re Remuneration of Judges of the Prov. Court of P.E.I.[2]  The constitutionality of these salary reductions were challenged as infringing the independence and impartiality of the courts as protected by section 11(d) of the Canadian Charter of Rights and Freedoms.[3]

The Court recognized judicial independence as an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867.[4]  Judicial independence was also recognized as a principle that extends to all courts, federal and provincial.  While section 11(d) of the Charter does not automatically provide the same level of protection to provincial courts as section 100 of the Constitution Ac, 1867 does to federal court judges, the power to change superior court judges’ salaries under section 100 was held to be equally applicable to the guarantee of financial security provided by section 11(d) of the Charter to provincial court judges.

Additionally, the Court held that a body be created to review judicial compensation. The body would be positioned between the judiciary and the other branches of government in order to avoid the possibility or appearance of political interference through economic manipulation.[5]  The constitutional function of the body would be to depoliticize the process of determining changes in judicial remuneration, and the objective would be achieved by having the body issue a report on the salaries and benefits of judges to the executive and the legislature.

Following the decision, the provincial governments created such bodies to review the compensation of provincially appointed judges.[6]  The federal government also created the Judicial Compensation and Benefits Commission, which evaluates the adequacy of the salaries and benefits of the federally appointed judiciary every four years.[7]  In determining the appropriate level of compensation and benefits the commission considers several factors, including the general economic condition across the country, the role of financial security of the judiciary in ensuring judicial independence, and the need to attract exceptional candidates to the judiciary.  The recommendations of the Commission are not binding; however, in order to disregard the recommendations, the government must demonstrate a rational justification for doing so.

Federally appointed judges are seeking an 18 percent salary increase by 2011, but they are unlikely to receive this amount. It would be the second time the government has gone against the recommendation of the Judicial Compensation and Benefits Commission. In 2006, the Conservative government reduced a 10.5 percent salary increase that had been supported in principle by the previous liberal government.[8]

[1] Tracey Tyler, “Judges told to forget 18 per cent pay hike” (12 February 2009) The Star.
[2] Reference re Remuneration of Judges of the Prov. Court of P.E.I., [1997] 3 S.C.R. 3 (CanLII).
[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11 (CanLII).
[4] Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3 (CanLII).
[5] Supra note 2, at para 166.
[6] See Alberta’s Judicial Compensation Commission.
[7] Judicial Compensation and Benefits Process, Department of Justice.
[8] Supra note 1.

No Fiduciary Obligation for Crown in Ermineskin Nation Case

On February 13, 2009, the Supreme Court of Canada (S.C.C.) re-examined the Crown’s fiduciary obligations toward the Ermineskin Nation and Samson Nation (“the bands”). The central question addressed in the case was whether or not the Government of Canada had a duty to invest royalties arising from the development of oil and gas reserves found beneath the surface of the Samson Reserve and the Pigeon Lake Reserve in Alberta.

Two decades ago, the bands filed statements of claim alleging that the Crown’s duties required investment of the royalties in a diversified portfolio.[1] The bands argued that the Crown’s failure to fulfill this duty has deprived them of hundreds of millions of dollars since the early 1970s.[2] Their claims were dismissed at the Federal Court level and the Federal Court of Appeal upheld that decision.[3]

The S.C.C. found that the Indian Act,[4] read in combination with the Indian Oil and Gas Act (“IOGA”)[5] and the Federal Administration Act (“FAA”)[6] neither requires nor authorizes the Crown to invest the bands’ royalties.[7]

Issue 1

The main issue at the S.C.C. was whether the Crown was obligated as a fiduciary to invest the oil and gas royalties that it was holding on behalf of the bands. If no such obligation existed, the bands alleged that the Crown breached its fiduciary obligations in the way in which it calculated and paid interest on the royalties.[8]

Analysis

The bands say that Treaty No. 6, which established the bands’ reserves, imposed on the Crown the duties of a common law trustee, which, they believe, would oblige the Crown to invest their royalties.[9] However, the Court found that the language and circumstances of the treaty did not point to a common law trust because all rights were relinquished to the Crown and, in return, the Crown simply agreed to set aside certain lands for use by the Indian signatories. This could only be characterized as a conditional transfer of land, and not a common law trust.[10]

Even if it were found that a common law trust existed, the Court held that this would not guarantee the outcome sought by the bands.[11] The bands argued that an oral representation made by the Crown to “put away to increase” implied that investments would be made.[12] However, the Court pointed out that investments do not guarantee increases: “there is no duty of a trustee at common law to guarantee against risk of loss to the trust corpus or that the corpus would increase.”[13] Therefore, the actions taken by the government, including the deposit of moneys in the Consolidated Revenue Fund (CRF) and the payment of interest to the bands, were consistent with its oral representation.[14]

If there had been a fiduciary obligation to invest arising out of Treaty No. 6 the rights of the bands may have been considered treaty rights protected under section 35(1) of the Canadian Charter of Rights and Freedoms(“Charter”).[15]existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Any legislation, such as the Indian Act restricting those duties, would be inconsistent and unconstitutional.[16] However, the Crown’s obligation under the treaty was not to invest the royalties. Instead, it had the obligation to guarantee that the funds would be preserved and would increase. The Crown could accomplish this by holding the royalties and paying a rate of interest to the bands so that the funds would indeed grow.[17] Since no treaty right to investment was found, section 35(1) did not come into play.[18]

The Court stated that the instruments of surrender, signed in 1946, created a fiduciary relationship that was trust-like in nature.[19] In accordance with these instruments, the Crown is only able to impart rights over the land in a manner that is beneficial to the bands. Although the fiduciary relationship does not arise out of a trust but is trust-like in nature, the Crown may still be assigned the duty to invest, unless there is legislation limiting this possibility.[20] In the case at hand, the Indian Act, the FAA, and the IOGA preclude the possibility of investment.

The Indian Act indicates that after 1951 the Crown was deprived of the power to invest moneys held in the government’s CRF for the bands.[21] The legislative changes were in accordance with government practice from 1859 to 1951, during which time the Crown had never invested these types of proceeds but rather had paid interest at rates of between three and six percent.[22] The reason that investment powers were no longer ascribed after 1951 was that it was recognized that failure to pay annual sums (due to potential investment losses) would be seen by the aboriginal people as a breach of faith.[23]

The bands also claimed that a different interest rate formula ought to have been chosen. In hindsight, investment in a laddered bond portfolio would have created better returns than the long-term floating rate approach, which the government chose at the time.[24] However, the government’s actions can only be considered prospectively. From the standpoint of the Crown, at the time it was reasonable to contend that the formula struck a balance between interest rates and inflation risk and, therefore, there was no breach of the fiduciary duty owed by the Crown.[25]

Issue 2

The bands argued that the Crown was in a conflict of interest when it “borrowed” the royalties without permission, again causing a breach of fiduciary obligations. In addition, the bands argued that the Crown was unjustly enriched by this borrowing.[26]

Analysis

The Court stated that the conflict of interest named by the bands is inherent within the statutory scheme.[27]A fiduciary that acts within the bounds of the applicable legislation cannot be in breach of its duties.[28] The Court also found that the Crown was not unjustly enriched.[29]

Issue 3

The appellants have also argued that if the Indian Act does preclude the Crown from investing the royalties, those provisions infringe their right to equality under section 15 of the Charter.[30] Section 15 reads:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Analysis

The Crown found that the provisions relating to money management in the Indian Act do draw a distinction between Indians and non-Indians.[31] However, that distinction is not a discriminatory one because it does not perpetuate stereotyping, prejudice, or disadvantage.[32] The bands or their trustees can make investments after the funds have been released from the CRF to the bands and the Crown no longer holds responsibility for the royalties.[33] This allows for more control by the bands.[34]

Alex Bailey (February 19, 2009)

[2] Ibid. at para. 2.
[3] Ibid. at para. 3.
[4] R.S.C. 1985, c. I-5.
[5] R.S.C. 1985, c. I-7.
[6] R.S.C. 1985, c. F-11.
[7] Supra note 1 at para. 80.
[8] Ibid. at para. 20.
[9] Ibid. at para. 49.
[10] Ibid. at para. 50.
[11] Ibid. at para. 51.
[12] Ibid. at para. 53.
[13] Ibid. at para. 57.
[14] Ibid. at para. 67.
[15] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11, s. 35(1).
[16] Supra note 1 at para. 46.
[17] Ibid. at para. 67.
[18] Ibid.
[19] Ibid. at para. 74.
[20] Ibid. at paras. 73 and 74.
[21] Ibid. at para. 66.
[22] Ibid. at para. 61.
[23] Ibid. at para. 60.
[24] Ibid. at para. 148.
[25] Ibid.
[26] Ibid. at para. 21.
[27] Ibid. at para. 127.
[28] Ibid. at para. 128.
[29] Ibid. at para. 184.
[30] Supra note 15; Supra not 1 at para. 22.
[31] Ibid. at para. 189.
[32] Ibid. at para. 190.
[33] Ibid. at para. 201.
[34] Ibid.

Freedom vs. Privacy

In a recent 3-2 decision, the Ontario Court of Appeal ruled that section 517 of the Criminal Code (giving the right of an accused to invoke a publication ban on pre-trial hearings) was constitutional and therefore did not infringe section 2(b) of the Charter of Rights and Freedoms, which protects freedom of expression.

The case, Toronto Star Newspapers Ltd. v. Canada, involved seventeen defendants who had allegedly been involved in terrorist plots to blow up various public buildings, including the Parliament building.[1] After applying for and receiving a publication ban on their bail hearings, a group of media companies led by theToronto Star launched an action challenging the publication ban, arguing that the ban violates section 2(b) of the Charter.

Three justices representing the majority ruled that “a publication ban is needed in jury cases to protect an accused’s right to a fair trial under sections 11(d) and 7 of the Charter, by preventing potential jurors from learning of prejudicial information from bail hearings which may never be heard at trial.”[2] Justice Rosenberg, speaking for the dissent, found that the mandatory publication ban violated section 2(b) of theCharter and cannot be saved by section 1, which allows for reasonable limits on Charter rights.[3]

Although the majority upheld the constitutionality of the mandatory publication ban, the court was unanimous in finding that the mandatory nature of the ban was unsatisfactory. The court narrowed the rule to apply only in cases that may be decided by a judge alone. However, a lawyer for the appellant media outlets highlighted the problem that while few cases are tried by jury, many more have the potential to be tried by jury.[4] Justice Feldman for the majority said that the ban was too broad,[5] while Justice Rosenberg argued that it cut off “meaningful and informed public debate.”[6] As there is a rule that in split decisions on a point of law before an appeal court, there is an automatic right of appeal to the Supreme Court of Canada, it is likely that this issue has yet to be resolved.[7]

 

[1]Toronto Star Newspapers Ltd. v. Canada, 2009 ONCA 59 at para. 4 .
[2] Tracey Tyler, “Court eases media rules for reporting bail hearings” Toronto Star (27 January 2009).
[3] Toronto Star, supra note 1 at para. 3.
[4] Robert Todd, “Bail Hearing Battle an Issue of “National Importance” Law Times (2 February 2009).
[5] Toronto Star, supra note 1at 159.
[6] Ibid. at para. 32.
[7] Law Times, supra note 4.

Important Minority Language Rights Victory at the SCC

In the recent case of DesRochers v. Canada (Industry),[1]  the Supreme Court of Canada ruled unanimously against a Franco-Ontarian who requested a declaration that “the federal government failed the French-speaking minority in the North Simcoe area by offering an economic development program that did not have equal results for francophones.”[2] Raymond DesRochers, Executive Director of the Corporation de development économique communautaire (CALDECH), put forth the argument that French services offered by an Industry Canada-sponsored community future development corporation (CFDC) were not of the same level as those being offered in English. As a result, DesRochers argued, the ministry was violating language rights protected by the Charter of Rights and Freedoms and the quasi-constitutionalOfficial Languages Act.[3] At issue along with section 20(1) of the Charter[4] was section 22 of the Official Languages Act,[5] which states that:

22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities
a) within the National Capital Region; or
b) in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language.

Supreme Court Justice Louise Charron agreed with the Federal Court of Appeal that Industry Canada was constitutionally obliged to provide services in French in the relevant region of Ontario, thus taking into account the needs of the minority Francophone community. However, because Industry Canada had already redressed the inadequate provision of French-language services by the CFDC, no remedy was required of Industry Canada other than costs.

Justice Charron did not approve of the lower court’s “narrow view of linguistic equality” in assessing whether the CFDC had meet its constitutional duty to provide minority language services, stating instead that “depending on the nature of the service in question, it is possible that substantive equality will not result from the development and implementation of identical services for each language community.”[6] Heenan Blaikie lawyer Ronald Caza believes this ruling will have an impact on all departments and agencies of the federal government, and will allow minority communities to better function in their own language and slow down the assimilation process.[7]

[2] Janice Tibbetts, Supreme Court Rejects Program Inequality Claim, The Vancouver Sun (5 February 2009).
[3] Radio-Canada, “Importante Victoire en Cour Suprême” (5 February 2009).
[4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[6] Supra note 1 at 51.
[7] Supra note 3.

Landmark Ruling for the Parental Rights of Known Sperm Donors

A recent Ontario ruling, C.(M.A.) v. K.(M.),[1] pitted the parental rights of a lesbian couple against a gay man who was also the sperm donor. Justice Marion Cohen sided with the father, who refused to relinquish parental rights over the child, yet this ruling notably declares a donor agreement unenforceable. In 2002, prior to the child’s birth, the couple and the gay man had signed a “donor contract,” which stated that he was to have regular access rights as a “co-parent” and, if both mothers were to die, full custody.[2][3] challenge if followed through.[4] Interesting from a legal perspective was the prospect of a “three-way adoption” which would have required a Charter challenge.

It is believed the friendship between the man and the women had deteriorated, leading the couple to reduce the donor’s access to the child. Access was restored by the courts in 2007, but the couple wanted more, asking the father to give consent for the non-birth mother to be named as an adoptive parent of the child. Where this to occur, the father would lose all rights as a parent.[5] Justice Cohen was decisive in her analysis of the situation, noting that “the issue for the court is not what kind of family the parents want, but what is best for the child.”[6]

Looking at the public policy angle, many lesbian couples will most likely have to be much more careful when deciding who their sperm donor will be in light of this decision, perhaps no longer choosing a close friend.[7]According to family lawyer Jeffrey Wilson, “an anonymous donor is more likely to ensure the autonomy of a two-parent family.”[8]
Additional Readings:

For previous proceedings, see M.K. v. M.C. and C.D., 2007 ONCJ 456 (CanLII).

 

[1] C.(M.A.) v. K.(M.), 2009 ONCJ 18 (CanLII).
[2] Ibid at 14.
[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[4] Shannon Kari, Court Backs Parental Right of Known Sperm Donor, The National Post (30 January 2009). Three-way parentage was allowed in A.A. v. B.B. and C.C., 2007 ONCA 2 (CanLII), but a three-way adoption would require such a Charter challenge.
[5] Ibid.
[6] Supra note 1 at 37.
[7] Supra note 4.
[8] Ibid.

University of Calgary Pro-Life Student Group Charged with Trespassing

Students at the University of Calgary have been charged with trespassing after refusing to leave campus during an antiabortion protest.[1]University of Calgary Campus Pro-Life, a student group with about 30 members, set up posters with graphic images. The protests started in November when University of Calgary Campus Pro-Life, a student group with about 30 members, set up posters with graphic images.

While the freedom of expression of the protesters may have infringed, a related issue in this case will be whether the Canadian Charter of Rights and Freedoms[2] applies to the actions of university administrators since section 32 of the Charter limits its application to only those matters within the authority of Parliament and the provincial legislatures.

In the case McKinney v. University of Guelph, the Supreme Court of Canada held the Charter does not apply to universities because, even though they operate under statutory authority and receive government funding, they are considered to be autonomous from government control.[3] Limiting the Charter’s applicability to government action was intentionally done so as not to "strangle the operation of society” or “diminish the area of freedom within which individuals can act.”[4] This decision was affirmed in Harrison v. University of British Columbia.[5]

In the case Douglas/Kwantlen faculty assn. v. Douglas College, the Supreme Court of Canada held Douglas College was indeed subject to the Charter.[6] This case was distinguishable from the aforementioned cases, because colleges are subject to greater government control than universities. At paragraph 16 of theDouglas decision, the Court reasoned that “though the government may choose to permit the college board to exercise a measure of discretion, the simple fact is that the board is not only appointed and removable at pleasure by the government; the government may at all times by law direct its operation. Briefly stated, it is simply part of the apparatus of government both in form and in fact.”[7]
Further Reading:

CanLII, “Canadian Charter of Rights Decisions Digest—Section 32(1)”

 

[1] CBC News, “Anti-abortion protesters charged with trespassing on campus” (2 February 2009).
[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (CanLII).
[3] McKinney v. University of Guelph, 1990 SCC 60 (CanLII).
[4] Ibid at para. 23.
[5] Harrison v. University of British Columbia, 1990 SCC 61 (CanLII).
[6] Douglas/Kwantlen faculty assn. v. Douglas College, 1990 SCC 63 (CanLII).
[7]Ibid at para. 16.

Alberta Court of Appeal Awards Costs in Caron Case

On January 30, 2009, in R. v. Caron,[1] the Alberta Court of Appeal affirmed the Court of Queen’s Bench decision to award costs to Gilles Caron for the legal fees he incurred in preparing his defence to an alleged violation of section 34(2) of the Use of Highway and Rules of the Road Regulation.[2] Caron did not dispute that he failed to make a left hand turn safely. He argued instead that the ticket was invalid because it was not in French.[3]

To help pay for his court costs, Caron applied to the Provincial Court judge for an interim cost order on the basis of the test developed in the Supreme Court case British Columbia (Minister of Forests) v. Okanagan Indian Band.[4] On November 6, 2006, the order was granted but set aside on appeal at the Court of Queen’s Bench, where the judge held that the Provincial Court judge lacked jurisdiction to grant Okanagancosts orders.[5] Thereafter, Caron successfully applied to the Court of Queen’s Bench for a funding order according to Okanagan.[6] The Court of Queen’s Bench judge directed the Crown to pay for Caron’s counsel and expert witnesses on May 16, 2007. On October 19, 2007, the same judge awarded Caron costs of $91,046.29 plus GST, representing the remainder of Caron’s legal fees for the trial. On July 2, 2008, the trial judge handed down his decision on the traffic infraction, stating that Caron’s language rights had been violated. Caron was granted the relief he sought.[7]

The issues on appeal at the Alberta Court of Appeal were:[8]

1. Are Okanagan interim costs available in quasi-criminal litigation?
2. Does the Court of Queen’s Bench have inherent equitable jurisdiction to award Okanagan interim costs for the purposes of a Provincial Court summary conviction proceeding?
3. Was the test set out in Okanagan properly applied in this case?

Issue 1: Are Okanagan interim costs available in quasi-criminal litigation?

In the criminal context an accused person enjoys the right to counsel.[9] Occasionally that right entails having counsel provided at government expense. In order for that to occur, the offence must be serious and complex. This principle arose from the case R. v. Rowbotham.[10] In Alberta, it was decided in R. v. Rain[11]that government funding may additionally require that the accused’s liberty be at stake. The same principles apply in the quasi-criminal setting.[12] The charge against Caron was neither complicated nor serious; therefore, he could not be awarded costs under either Rowbotham or Rain.[13]

In the civil context, advance costs are available to those who meet the test laid out in Okanagan:[14]

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.

4. In the 2007 case Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue),[15] the Court added a fourth component to the test, emphasizing that only in exceptional circumstances should advance costs be granted.

In R. v. Caron, the Crown argued that no cost award should have been made because Caron should have raised the constitutional challenge by filing a civil notice of motion instead of challenging Alberta’s Languages Act[16]in a quasi-criminal context.[17] The Crown submitted that Caron should not receive the protection of criminal processes and simultaneously be allowed access to rights which are restricted to civil processes. The Court of Appeal found that where the constitutional issue is clear from the start, there is little difference between a constitutional challenge in the quasi-criminal sphere and one brought via strictly civil litigation.[18]The appeals court concluded that “in principle, an Okanagan order may be available with respect to quasi-criminal proceedings when the real issue is not the guilt or innocence of the accused, but rather a constitutional question of public importance.”[19]

Issue 2: Does the Court of Queen’s Bench have inherent equitable jurisdiction to award Okanagan interim costs for the purposes of a Provincial Court summary?

The Court of Appeal concluded that in Okanagan the Supreme Court established the right to costs; however, that right is not capable of being enforced in the Provincial Court. On the authority of Board v. Board,[20] the right must therefore be enforceable by the Alberta superior court if there is no other avenue of enforcement.[21] There is a presumption that where a right exists, there is a court with the power to enforce it.

Issue 3: Was the test set out in Okanagan properly applied in this case?

The Court of Appeal found that the Okanagan test had been satisfied.[22] The Crown argued that several errors had made in the application of the test by the Queen’s Bench judge. First, the Crown suggested that reliance on the argument of an imbalance of resources between the Crown and the defendant was inappropriate.[23] The Court of Appeal, however, pointed out that the Okanagan test implies that there must be an imbalance of resources before such an order is made.[24] Additionally, the appeals court said that this principle is an important one because a gross imbalance of resources in a constitutional case may lead to the possibility of future arguments that the case was not fully litigated.[25] It is always in the interest of the government to fully resolve constitutional issues.

Another important argument made by the Crown was that the Provincial Court’s jurisdiction limits the scope of any order, meaning that the order granted affects only Caron’s personal rights and not those of Albertans in general.[26] This makes Okanagan funding inapplicable. The Court of Appeal pointed out, however, that the case law demonstrates that quasi-criminal litigation has often established important constitutional principles that have precedential value for all Canadian citizens.[27] Caron admitted the facts underlying the traffic ticket, making “everyone well aware that this was constitutional litigation.”[28]

The Court of Appeal did note, however, that the Queen’s Bench judge failed to address the second requirement of the first Okanagan criteria.[29] The defendant had to show that he could not pay for the litigation and that there was no other realistic way that the issue could come to trial. The Court of Appeal found that omitting to show that no other realistic way exists would not affect the outcome of the appeal.[30] The Supreme Court of Canada must have meant that if there is an alternative means of proceeding with respect to the charge that is laid, the litigant might not be entitled to Okanagan costs.[31] The Court of Appeal judge stated that if Caron had been able to mount a complicated language challenge on his own, this might have been considered a realistic alternative for the issue to come to trial.[32] As it stands, the Court of Appeal judge did not find any other realistic way for the issue to come to trial.

Finally, the Queen’s Bench judge disagreed with the Crown that Caron had not gone to exhaustive efforts to obtain funding.[33] The Court of Appeal found no legal error in this determination, stating that “the applicant does not need to show that it checked with absolutely every person, organization, or institution that might be remotely interested in the question. It is sufficient if the applicant sought funding from the primary players interested in the constitutional question before the court.”[34]

February 7, 2009 - Alex Bailey

 

[1] R. v. Caron, 2009 ABCA 34.
[2] Alta. Reg. 304/2002.
[3] Supra note 1 at para. 1.
[5] Supra note 1 at para. 3.
[6] Ibid. at para. 4.
[7] Ibid. at para. 5.
[8] Ibid. at para. 6.
[9] Ibid. at para. 13.
[12] Supra note 1 at para. 15.
[13] Ibid. at para. 16.
[14] Supra note 4 at para. 40.
[15] 2007 SCC 2 at para. 37.
[16] R.S.A. 2000, c. L-6.
[17] Supra note 1 at para. 20.
[18] Ibid. at para. 23.
[19] Ibid. at para. 24.
[20] [1919] AC 956.
[21] Supra note 1 at paras. 46-47.
[22] Ibid. at paras. 50-53, 65.
[23] Ibid. at para. 55.
[24] Ibid.
[25] Ibid. at para. 56.
[26] Ibid. at para. 59.
[27] Ibid.
[28] Ibid. at para. 60.
[29] Ibid. at para. 62.
[30] Ibid.
[31] Ibid.
[32] Ibid.
[33] Ibid. at para. 64.
[34] Ibid.

Métis Harvesting in Alberta

In the 2003 R. v. Powley[1]decision, the Supreme Court of Canada recognized for the first time that the Métis have an Aboriginal right to hunt for food under section 35(1) of the Constitution Act, 1982.[2]

In 2004, the Métis Nation of Alberta (MNA) and the Government of Alberta agreed to the implementation of the Interim Métis Harvesting Agreement (IMHA).[3] The IMHA provided that members of the MNA could engage in year-round hunting, trapping, or domestic fishing (“harvesting”) for subsistence on all unoccupied provincial Crown lands in Alberta (subject to conservation and safety restrictions).

In 2007, the IMHA was replaced by the Sustainable Resource Development “Métis Harvesting in Alberta” Policy (the “SRD Policy”).[4] The unilateral development and implementation of the SRD Policy by the Alberta government has been rejected by the MNA on the grounds that it fails to fully recognize the Métis right to harvest.

In particular, the MNA argues that the SRD Policy only allows some Métis to exercise their right to harvest, under limited circumstances, and only within small, designated areas across Alberta. What the MNA seeks is provincial codification of the Powley decision allowing all members of the MNA the right to harvest on all unoccupied Crown lands (a substantial portion of land in Alberta).

Since the termination of the IMHA, approximately twenty-five members of the MNA have been charged with offences under the Wildlife Act[5]and the Fisheries (Alberta) Act[6] while engaging in hunting and fishing activities. In the context of the above-noted charges, the MNA has filed a suit in the Court of Queen’s Bench of Alberta challenging the constitutional validity regulatory regime embodied in the SRD Policy.

Some of the members charged are scheduled to appear in provincial court on February 10, 2009.

[1] R v Powley, 2003 SCC 43, [2003] 2 SCR 207.
[2] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c. 11.
[4] Alberta Sustainable Resource Development, Métis Harvesting in Alberta (5 July 2007).
[5] Wildlife Act, RSA 2000, c W-10.
[6] Fisheries (Alberta) Act, RSA 2000, c F-16.