Advance
Continued From Page 10
under subs. 91( 24) of the Con-
stitution Act, 1867. If success-
ful, the case would affect
200,000 or more people.
There was an agreement
between the Congress of Aborig-
inal Peoples (CAP) and the Min-
ister of Indian Affairs and North-
ern Development to finance the
case through the Test Case Fund-
ing Program (TCFP). The TCFP
was created to fund test cases on
the rights of First Nations peoples
that have the potential to create
judicial precedent. The TCFP has
a cap of $1.5 million per case.
To some, the judgment of the
SCC in Caron constitutes an
encouraging signal for meritorious yet impecunious claimants.
Others argue Caron is no more
than a mechanical application of
the test set out in Okanagan
Indian Band and modified in
Little Sisters.
The fact patterns in
Okanagan Indian Band, Caron and
Daniels have much in common.
The fact that the latter two
cases were funded by govern-
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ment programs may have
proved determinative. Recall
that Caron had been funded in
part by the Court Challenges
Program, a program that was
abolished by the federal government on Sept. 25, 2006,
before additional funding could
be considered. The ties that
bind these three cases are perhaps more profound, as they all
affect the rights of national
minorities: First Nations
peoples, Canada’s Métis peoples
and Canada’s official language
minority communities.
The trilogy of SCC pronouncements regarding advance cost
awards ensured a minimum level
of access to justice for parties
litigating the rights of national
minorities. Perhaps other minority groups should be concerned.
In the upcoming federal election
campaign, they may wish to
determine the position of federal
parties on access to justice in
general, and the full reinstatement of the Court Challenges
Program in particular. n
Mark Power is an assistant
professor at the University of
Ottawa’s Faculty of Law and a
lawyer at Heenan Blaikie LLP
in Ottawa. François Larocque is
vice-dean of the French Common
Law Program of the same uni-
versity. Together with Michel
Doucet, they were counsel for the
Association canadienne-fran-
çaise de l’Alberta in Caron.
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