Interim funding orders for Public Interest litigation

R. v. Caron, 2011 SCC 5 deals with the interim funding of public interest litigation in the context of a provincial offence.

In the course of a routine prosecution for a minor traffic offence, the accused 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.

The Alberta Court of Queen's Bench — a superior court — agreed to order funding for this accused defending the regulatory prosecution in the provincial court. The Supreme Court of Canada agreed that funding, in this specific case, was appropriate holding:

[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.