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Law Times • February 14, 2011 Quebec Crowns' bid for economic justice C rown prosecutors went on strike across Quebec last week. The action included all 450 of them. They want parity with On- tario provincial Crown prosecutors. Lawyers out in the streets? Is this Pakistan? Quebec's Crown lawyers make $100,000 a year on average. They want the $140,000 a year that On- tario prosecutors with the same qualifications and experience make on average. That's a 40-per-cent pay increase, and they want it now. Premier Jean Charest says he'll give them the same five-per-cent raise as other public servants. Even- tually, they'll catch up to Ontario, he argues. At that rate, it'll take 32 years, they reply. Some Quebec Crowns just start- ing out make as little as $44,000 a year. They could make more selling law books. What Quebec prosecutors earn on average is about half, they say, of what defence lawyers make in pri- vate practice. That means that a top Crown at $120,000 a year could go up against a defence lawyer making $240,000. As a result, many ambi- tious young prosecutors run off to private practice as defence counsel. It almost seems as if society wants this to happen. If you do your time for a couple of years as a Crown prosecutor at low wages, you can then go off to earn more as a private defence lawyer. It's as if being a Crown prosecu- tor is a training ground for getting into private practice later on, sort of like an internship for something better. The older Crowns don't like that. They see representing the state in criminal cases as a noble career in itself, not just a step up to some- thing else. There's always the federal gov- ernment as well. One Crown in Montreal says he recently saw a colleague run off to the federal government offices located across the street. He did it during the noon hour. His new sal- ary will be an additional $50,000 a year doing mostly the same kind of work for the federal government. It's a different employer with a different focus, but the Criminal Code is the same everywhere. Quebec Crowns complain they often have too many inexperienced lawyers on their team. They worry the odds are stacked against the state in the criminal courts given the scenario of young law gradu- ates who didn't sign up with big law firms going up against old pros paid the big bucks. Take the big biker gang case in Quebec. Two years ago, Quebec cops staged Operation Shark, the biggest roundup of Hells Angels and other biker gangs in the prov- ince's history. This month, 137 bikers and their pals are finally in court ac- companied by the best legal talent that alleged gang-affiliated million- aires can buy. Their lawyers have been preparing for two years. Now they've launched an attempt to have The Hill By Richard Cleroux the cases thrown out. They could win. If they do, that's the end of Operation Shark. But the issue isn't just money. The Crown prosecutors want help. They're overloaded with work. They become frustrated and struggle to stay on top of it knowing they can't do their best. The result is departure or burnout. They often feel they lose cases that they might otherwise win for want of preparation. In the meantime, society gets angry and complains about in- competent Crowns when the real problem is their workload. Prosecutors want the province to hire 400 more people. Once again, Charest says they'll get 400 more Crowns — eventually. They've heard that for 30 years from succes- sive provincial governments. The Crowns are careful not to turn the population against them. That's why one or two prosecutors are still at work in every judicial dis- trict on essential cases. That means dealing mostly with overnight ar- rests in court. Remands take up most of the work as the court de- cides whether an accused gets bail or not. The last thing the Crowns want is for some little old lady accused of shoplifting to be rotting in jail for a week because there was no prosecu- tor around to deal with bail mat- ters. But other cases already under- way could face months of delay. Actually, it's worse than that. Other government lawyers who write laws or work for provincial agencies and commissions, as well as notaries not covered by the regular public ser- vice, also went on strike. They, however, aren't asking for anything close to the 40 per cent. In the meantime, having an additional 1,100 legal experts on strike brought most of the government's legal busi- ness to a halt last week. While the province could pass back-to-work legislation, it appears more likely that the court of public opinion will decide the issue. Our criminal justice system works best when there's an even bal- ance between prosecutors and the defence. We know of states where the prosecution always wins. The case is decided ahead of time. We don't want to live in places like that. We know of other jurisdictions where the crooks walk most of the time. That isn't so good either. What we strive for is an even balance and a chance to let the evi- dence speak for itself and for the judge to decide. Perhaps we'll get that in Quebec. LT Richard Cleroux is a freelance repor- ter and columnist on Parliament Hill. His e-mail address is richardcleroux@ rogers.com. COMMENT Caron shows need for public-interest funding O BY SHASHU CLACKEN AND ALLISON THORNTON For Law Times n Feb. 4, the Supreme Court of Canada handed down its decision in R. v. Caron in which it ruled unanimously that superior courts have in- herent jurisdiction to require the state, in special circumstances, to fund public-inter- est 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 liti- gation in the provincial courts as well. In Caron, the court upheld an interim costs or- der by the Alberta Court of Queen's Bench that had compelled the Crown to pay $120,000 worth of fees and disbursements in- curred by Gilles Caron for lawyers and experts to defend a minor traf- fic 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 Al- berta's statute books were constitutionally invalid for being in English only. That chal- lenge 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 formu- lated in British Columbia (Minister of For- ests) 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 can- not afford to pay and no other realistic op- tion 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 impor- tance, and have not been resolved in previ- ous 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 su- perior court's inherent jurisdiction to con- trol the process before it, is inherently dis- cretionary 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 in- terests of justice to deny the advance costs application. The court also stressed that ad- equate financial controls are appropriate and that interim costs awards should be carefully fashioned and reviewed throughout the pro- ceedings to ensure a balance between access to justice and encouraging the reasonable and efficient conduct of litigation. Caron was a sufficiently special case be- cause it was a major constitutional challenge that if successful would have a widespread and severe impact, including possibly re- quiring 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 inter- im 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 www.lawtimesnews.com 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 con- trols 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 Speaker's Corner courts will authorize a flood of state-fund- ed 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 or- dering interim fund- ing, that constitutional challenges of great im- portance will not "go unresolved for want of champion with deep pockets." This rep- resents 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 vic- tory on the public-funding issue. Like Ca- ron, who faced difficulty raising funds for his language-rights challenge even with help from private donors and a now-discontin- ued 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 Chal- lenges 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 re- spond 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 con- stitutional 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 interest- ing to see whether and how the legislatures talk back. LT Allison Thornton and Shashu Clacken both practise at Koch Thornton LLP. They can be reached at allison.thornton@ktbarristers. com and shashu.clacken@ktbarristers. com. PAGE 7