Would you pay $220,000 in legal fees to defend a $100 traffic ticket?

On December 4, 2003, Gilles Caron was charged with failure to make a left turn safely contrary to Alberta traffic laws. 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. Mr. Caron did not contest the facts of the offence and said his only defence was the argument that the proceedings were a nullity because the court documents were in English.

The traffic court trial was lengthy. The record was substantial. The trial of the allegation of improper left turn, which ordinarily would involve little in the way of time and complexity, became a trial that lasted many days over the course of two years. Its length was solely attributable to the constitutional challenges advanced by Mr. Caron. The trial included 12 witnesses, eight of whom were experts, 9,164 pages of transcripts and 93 exhibits.

Mr Caron did not pay all the costs of his trial. The Alberta francophone association arranged for two loans of $15,000 each from its supporters. Other supporters donated some funds. No one can justly complain about these payments – it is quite proper for Mr. Caron and his supporters voluntarily to fund his litigation.

Less obviously appropriate is the government funding provided. The federal Court Challenges Program provided $70,000 (paid in increments as the trial lengthened from month to month). While somewhat contentious, the Court Challenges Program was legislatively created and represented the will of Parliament to fund meritorious public interest litigation. But the largest amount of funding was provided by Alberta taxpayers without legislative authority and pursuant to an order of the Alberta Court of Queen’s Bench. Ultimately about $120,000 was provided under the order for fees and disbursements for lawyers and experts. This $120,000 was paid without any legislation authorizing its payment and, indeed, it is hard to imagine such a payment would have received legislative approval by any provincial legislature.

The net result was that taxpayers (federal and provincial) paid at least $190,000 to defend a $100 ticket for an improper left turn (and remember the turn itself was admitted as being improperly made).

As might be imagined, the Alberta government sought to have the order that Alberta taxpayers fund the litigation set aside. The Alberta Court of Appeal held the order was properly given as did the Supreme Court of Canada in a decision released February 4, 2011.

The Supreme Court held that “the fundamental purpose (and limit) on judicial intervention is to do only what is essential to avoid an injustice” and so as avoid a “lopsided contest in which the challenger, by reason of impecuniosity, had to abandon his defence” funding was properly granted.

Certainly the issue raised by Mr. Caron’s case is significant. If Mr. Caron is correct the entire corpus of Alberta’s unilingual statute books could be fall. The impact on Alberta legislation, if Mr. Caron were to succeed, could be grave.

But why does that significance mean that a $100 ticket should be the basis for taxpayers to be required to spend significant funds without legislative approval? Legal aid in Canada is strapped for funds. Family law cases largely go unfunded and even serious criminal matters have very restrictive funding. Civil legal aid is virtually a dead letter. The money spent on Mr. Charon’s traffic ticket could have funded dozens of cases for access and support in family courts. Moreover, challenges to Alberta’s language laws could have been brought in another context, perhaps by lawyers acting on a pro bono basis. Virtually all litigation lawyers do some pro bono work and a high profile constitutional case challenging the language laws in Alberta would certainly have found competent lawyers prepared to act without fee.

Certainly there are times when the Court must, in order that justice is done, make orders that do for the expenditure of taxpayers’ money. Serious criminal cases, murder, arson, terrorism offences, require legal assistance to see justice is done. In those cases if legal aid is not available the Courts rightly must direct that lawyers be paid for. But in the case of an improper left hand turn, no matter how elevated the defence, it is unseemly for taxpayers to have to foot the bill. The justice of the case did not require the extraordinary remedy of mandating government funding and Mr. Caron and his supporters should have paid for his own traffic court trial.