



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Martin, 2016 ONCA 840

DATE: 20161108

DOCKET: C59909

Weiler, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Chad Everett Martin, Rhonda Lynn Asbreuk and
    Williamsberg
Financial Centre Inc.

Respondents

Xenia Proestos, for the appellant

Mark Halfyard and Breana P. Vandebeek, for the
    respondents

Heard: April 26, 2016 and September 21, 2016

On appeal from the ruling of Justice Robert D. Reilly of
    the Superior Court of Justice, dated November 28, 2014, upholding, on
certiorari
,
    the ruling of Justice Colin R. Westman of the Ontario Court of Justice, dated
    October 24, 2014.

Weiler J.A.:

A.

Overview

[1]

This appeal raises a narrow jurisdictional issue. Does the Summary
    Conviction Court judge have jurisdiction to conduct an inquiry into whether
    costs should be awarded to the respondents as a remedy for alleged violations
    of their rights under the
Canadian Charter of Rights and Freedoms
after a stay of proceedings by the Crown pursuant to s. 579 of the
Criminal
    Code
?

[2]

For the reasons that follow, I would hold that the Summary Conviction
    Court judge did not have jurisdiction.

B.

HIstory of the Proceedings

[3]

The respondents were charged with offences under s. 239(1) of the
Income Tax Act
,

R.S.C., 1985, c. 1 (5th Supp.). A person
    guilty of an offence under this provision is liable on summary conviction to
    pay a fine, or is subject to a fine and imprisonment for a term not exceeding
    two years. At the election of the Attorney General of Canada, the matter may
    proceed by way of indictment and, in that case, an accused is subject to
    greater penalties.

[4]

The Attorney General proceeded summarily and the trial commenced
    on January 20, 2014. Evidence was heard from May 21 to May 29, 2014, at which
    time the key Crown witness, who was being cross-examined, exhibited signs of
    extreme emotional strain, was taken to hospital and was granted a medical
    leave. The Crown took four days to reconsider its position and then decided to
    exercise its power under s. 579 of the
Criminal Code
[1]

to direct an officer of the court to stay the proceedings that had been
    brought against the respondents.

[5]

Before directing the stay on June 3, 2014, the Crown advised the
    respondents defence counsel of its intention. Defence counsel replied that the
    respondents would seek costs against the Crown pursuant to s. 24(1) of the
Charter
for alleged violations of their rights.

[6]

After the proceedings were stayed, the respondents advised the
    Summary Conviction Court judge of their application for costs. Then, on June 5,
    2014, the respondents filed a Notice of Application for an order of costs
    against the Crown and the Canada Revenue Agency. The application sought costs
    as a remedy for various acts of prosecutorial and investigation negligence,
    abuses of the criminal process and violation of the Applicants rights as
    protected by s. 8 of the
Canadian Charter of Rights and Freedoms
.

[7]

The Crown submitted that, as soon as the stay was entered, the
    court lost jurisdiction to grant the costs sought.

[8]

The Summary Conviction Court judge held that the informal
    understanding between the Crown and the defence was sufficient to preserve this
    courts right to deal with the issue of costs.

[9]

The Crown applied for
certiorari
thereby seeking to
    have the Summary Conviction Court judges decision that he had the right to
    consider the respondents request for costs, reviewed on the basis he had
    exceeded his jurisdiction.

[10]

The Superior Court judge held that, prior to the stay, there was
    a request for relief in accordance with s. 24(1) of the
Charter
before
    the Summary Conviction Court and that, while the circumstances in which the
    defence would be entitled to costs may be limited, the application was not
    completely barred by the stay. Accordingly, the Superior Court judge refused to
    quash the decision at first instance for want of jurisdiction.

[11]

On the appeal to this court, the Crowns position is that the
    decision in
R. v. Fach,
[2004] O.J. No. 4637 (C.A.) is
    dispositive of the jurisdictional issue. In
Fach
,

the Crown
    withdrew charges against the respondents prior to arraignment and plea. This court
    held at para. 2:

Absent abuse or some other flagrant impropriety on the part of
    the Crown in withdrawing the charges, neither of which was alleged here, the
    summary conviction judge had no jurisdiction to hold a freestanding hearing on
    the issue of costs arising from alleged breaches of the respondents
Charter
rights.

[12]

Shortly before the appeal before us commenced on April 26, 2016,
    this court released its decision in
R. v. Fercan Developments Inc
.
,
2016 ONCA 269, 28 C.R. (7th) 148. In
Fercan,
this court held that
    a provincial court judge hearing a forfeiture application under the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19 (
CDSA
) has the
    implied power to control its own process and therefore, the jurisdiction to
    award costs when there has been a marked and unacceptable departure from the
    reasonable standards expected of the prosecution.

[13]

Before us, the respondents advanced the argument that we should
    apply
Fercan
, and that the ratio in
Fach
is not binding on
    this court. The hearing was adjourned to allow a request for the appeal to be
    heard by a five-member panel. That request was denied. The appeal continued on
    September 21, 2016. In addition to supplementary facta on whether
Fercan
displaced
    the principles outlined by this court in
Fach
, the court received
    further oral submissions.

C.

Discussion

[14]

Before deciding the overarching issue of whether a Summary Conviction
    Court judge has jurisdiction to make an award of costs once a stay has been
    entered under s. 579 of the
Criminal Code
, I must discuss the holdings
    in
Fach
and
Fercan
.

(1)

Is
Fach
dispositive of this appeal?

[15]

The Crown submits that, like all decisions of the Court of
    Appeal,
Fach
is binding on us and we must apply it in this case.

[16]

The respondents acknowledge that
Fach
is a binding
    decision but, submits that, because it is an endorsement, it has limited
    precedential value and is not decisive of the issue before us. In addition, the
    respondents rely on the factual differences between the two cases.

[17]

I agree that the factual context of
Fach
differs from
    the case before us. There, the accused was never arraigned and no plea was
    taken before th
e
charges were withdrawn. Unlike this case, the judge
    in
Fach
never became the trial judge and, as such, never gained
    jurisdiction to hear a free-standing costs application.

[18]

I also agree that reasons given by way of endorsement are mainly
    directed at giving the immediate parties an understanding of why the court disposed
    of the appeal as it did. Jurisprudential principles intended to be articulated
    for the first time take the form of written judgments. Care must be taken not
    to construe an endorsement as supporting broad principles that were not
    specifically addressed: see
R. v. Singh,
2014 ONCA 293, 120 O.R. (3d)
    76, at para. 12;
R. v. Timminco Ltd.,
(2001), 54 O.R. (3d) 21, 42 C.R.
    (5th) 279 (C.A.), at paras. 35-36.

[19]

That said, the weight to be given to an endorsement will vary
    widely. Sometimes the general principles of law have already been established by
    full written reasons in prior cases and it is only necessary for the Court to
    apply those principles to the case before it. Sometimes the jurisprudential
    heavy lifting in the particular case has been done by the court at first
    instance and there is little, if anything, for the appellate court to add apart
    from its agreement with that reasoning.

[20]

The endorsement in
Fach
expressed its substantial
    agreement with the reasoning of the judge at first instance who observed that:

when the question of jurisdiction is tested against the
    functional and structural approach set out in
R. v. 9746497

Ontario
    Inc
.

(
c.o.b. Dunedin Construction
) (2001), 159
    C.C.C.(3d) 321 (S.C.C.) at 355, it is clear that the overriding function of the
    summary conviction courts is to try criminal cases. It is not to fix costs.

The endorsement also cited appellate and Supreme Court
    of Canada jurisprudence for the general principle that absent a finding of
    abuse or other flagrant impropriety, it is not for the Summary Conviction Court
    judge or the accused to determine how the limited resources of the Summary Conviction
    Court should be used. Thus, the weight to be accorded to
Fach
must
    take into consideration the reasons it endorsed and the jurisprudence on which
    it relied.

[21]

I must also take into consideration, however, that the argument
    made in
Fercan,
namely, that the provincial court has

implied
    jurisdiction to award costs based on the courts ability to control its own
    process, was not raised at trial or on appeal in
Fach.

[22]

Because the factual context is different and because the argument
    now made is different,
Fach
is not clearly dispositive of the appeal
    before us.

(2)

Does
Fercan
apply to this case?

[23]

Before considering whether
Fercan
applies to this appeal,
    it is necessary to lay out the factual background and the considerations that
    animated the decision.

[24]

Fercan Developments Inc. was the subject of a forfeiture
    application under s. 16 of the
CDSA
after a marijuana grow operation
    was found on a portion of its 35 acre property. FirstOntario Credit Union held
    a three million dollar mortgage on the Fercan property as security for a loan.

[25]

Robert DeRosa was the property manager for Fercan. He used his
    position to ensure that the grow operation remained hidden but, eventually, it
    was discovered and he was charged and convicted of offences under the
CDSA
.
    Roberts brother, Vincent, was the sole director, officer and shareholder of
    Fercan. Robert lived on property owned by GRVN Group Inc. (GRVN). Police
    discovered evidence of a recently dismantled grow operation on the GRVN
    property as well as drugs linked to the Fercan property. Another brother,
    Nicola, was the sole director, officer and shareholder of GRVN. Nicola, GRVN,
    Vincent and Fercan were never charged with any offence.

[26]

The Crown obtained an
ex parte
restraint order on the
    property owned by Fercan, including FirstOntarios interest, as well as on the
    property owned by GRVN in the Superior Court. The Crown successfully resisted an
    application by Fercan and FirstOntario to vary the restraint order to permit
    sale of the Fercan property, repayment of FirstOntarios mortgage, and the deposit
    of the balance of the money in court. It then brought forfeiture proceedings
    against Fercan, FirstOntario and GRVN. Section 19(3) of the
CDSA
permits a judge to return offence-related property to any person who is
    lawfully entitled to it and who appears innocent of any complicity or collusion
    in respect of the underlying designated substance offence. Prior to the
    commencement of the hearing, the application judge ruled that on a s. 19(3)
    application, the onus remained on the Crown throughout the proceedings and it
    had the burden of showing that the respondents did not appear innocent of any
    complicity or collusion:
R. v. Fercan Developments Inc.,
[2013] O.J.
    No. 748 (C.J.). The Crown did not appeal this decision.

[27]

On the 31st day of the forfeiture hearing, the Crown suddenly
    abandoned its application for forfeiture against FirstOntario. The hearing was
    maintained in relation to the application against Fercan and GRVN. The application
    judge concluded that, although these were offence-related properties, the
    evidence overwhelmingly led to the conclusion there was no evidence of complicity
    or collusion by them or their owners with Robert or those convicted in relation
    to the grow operation. The Crown did not appeal this decision.

[28]

FirstOntario then sought costs against the Crown before the provincial
    court judge who had heard the forfeiture application. So did Fercan and GRVN. The
    application judge held that the Crowns forfeiture application was without
    merit from the start. Any evidence the Crown had connecting Fercan and GRVN to
    the grow operations was extremely speculative and ignored the body of evidence
    rebutting any inference advanced by the Crown against these innocent third
    party by-standers. The decision to commence forfeiture proceedings demonstrated
    an intransigent, hardball attitude, which continued throughout the hearing,
    such as refusing to provide disclosure of the evidence relating to the grow
    operations even though such disclosure would have been provided to an accused
    person. In relation to FirstOntario, the Crown had initially not contested its
    security interest, said it would advise of any change of position, did not do
    so, then, even after obtaining documentary disclosure of the validity of FirstOntarios
    interest, aggressively resisted its application to vary the restraint order,
    and conducted forfeiture proceedings against it. The Crowns explanation for
    suddenly abandoning the proceedings against FirstOntario was not satisfactory.
    Overall, the conduct of the Crown towards FirstOntario amounted to a marked and
    unacceptable departure from the reasonable standards expected of the
    prosecution or Crown, misconduct meriting an award of costs against the Crown
    on a substantial indemnity scale. The application judge also concluded that the
    Crowns conduct in relation to Fercan and GRVN met the standard for an award of
    costs against the Crown.

[29]

The Crown appealed. One of the arguments made on appeal was that
    the provincial court judge lacked jurisdiction to make an award of costs under
    the
CDSA
and that the applicants should initiate an action in the
    Ontario Superior Court for damages instead. This court rejected that argument. Writing
    on behalf of the Court, LaForme J.A. rested his decision on three linked pillars
    or reasons. The first is that even though a statutory court does not have any
    inherent jurisdiction, the court has an implied power to control its own
    process and, as part of that power, a provincial court judge can award costs.
    The second is that the breadth of the provincial courts mandate under the
CDSA
suggests that it has an implied power to award costs. Both the Superior Court of
    Justice and the Ontario Court of Justice have jurisdiction to hear forfeiture
    applications under the
CDSA
. Court is not defined in the
CDSA
.
    Justice LaForme held that, having regard to the wording of the forfeiture
    provisions, Parliament intended that the power of the provincial court judge
    and the Superior Court judge in relation to forfeiture applications be equal.
    Third, having regard to the statutory context, the implied power to award costs
    was reasonably necessary for the court to discharge its mandate in a fair and
    efficient manner. At para. 55, LaForme J.A. stated:

[I]n light of the Superior Courts power to award costs,
    depriving the Ontario Court of Justice of that power is undesirable. Without
    this power a contest would likely arise as to which court the application for
    forfeiture should be brought in, depending on whether the costs issue was
    deemed relevant by the Crown. A contest like this would frustrate the scheme of
    the forfeiture provisions and could not have been intended by Parliament.

[30]

The Crown submits that
Fercan
is limited to the
CDSA
forfeiture regime. In support of its position, the Crown points out that in
Fercan
,
    the court held that a
CDSA
forfeiture proceeding is different from
    routine criminal cases:
Fercan
, at para. 79. A
CDSA
forfeiture proceeding is a stand-alone hearing and is neither a trial nor part
    of sentencing. Second, the parties in
Fercan
were innocent third party
    by-standers. An accused who is charged but not convicted is not entitled to the
    same treatment by the courts:
Fercan
, at para. 80. Further, the Crown
    notes that
Fercan
does not mention
Fach
, a reflection of the
    factually distinct context in
Fercan
,

and an indication that
Fercan
was not meant to overrule
Fach
. Finally, the Crown also submits
    that the respondents are not without a remedy, they can bring a separate
    proceeding in the Superior Court for costs.

[31]

The respondents submit that the implied power of a provincial
    court judge to control its own process is not limited to the forfeiture regime
    under the
CDSA
. They argue that there is no reason to limit
Fercan
.
    The respondents submission is that simply by creating a hybrid offence,
    Parliaments implied intention is that both the Summary Conviction Court and
    the Superior Court have the same jurisdiction to award costs and the Summary Conviction
    Court must entertain the respondents application.

[32]

The respondents further point out that in
Fercan,
LaForme
    J.A., rejected the argument now advanced by the Crown that the respondents are
    not left without a remedy because they can bring a separate proceeding in the
    Superior Court. Relying on the Supreme Court of Canadas decision in
R. v.
    Conway,
2010 SCC 22,

[2010] 1 S.C.R. 765, at para. 79, LaForme
    J.A. observed, at para. 57 of his reasons, that bifurcating proceedings is
    undesirable and should be avoided in all but exceptional cases. He also relied
    on the decision of McLachlin C.J.C. in
Dunedin
to the effect that
    bifurcation would negatively impact the effective and efficient functioning of
    the courts and could render a remedy illusory in practice. The respondents
    submit that two policy reasons, fairness and judicial efficiency, militate in
    favour of the Summary Conviction Court judges having the power to award costs.

[33]

A fair reading of
Fercan
leads me to conclude that it is
    also not determinative of this appeal. While recognizing, generally, that a
    statutory courts ability to control its own process can extend to awarding
    costs, LaForme J.A. reiterates throughout the judgment that the particular
    proceeding, a
CDSA
forfeiture hearing, provides the foundation for
    much of his analysis and conclusions. As will be discussed below, the context
    in which the issue arises in this case, a cost application brought after a Crown-directed
    stay of proceedings, gives rise to wholly different considerations than those
    at play in
Fercan
.

(3)

Did the judges below err in holding that the Summary Conviction Court
    had jurisdiction to conduct an inquiry into costs notwithstanding the stay of
    proceedings under s. 579 of the
Criminal Code
?

[34]

It is apparent from the reasons of the Summary Conviction Court judge
    on the respondents costs application, that he accepted the respondents
    comment to the Crown that they would bring an application for costs, as an
    informal application for Charter relief under s. 24(1) made prior to the entry
    of the stay. On the
certiorari
application, the Superior Court upheld
    the Summary Conviction Court judges decision on the basis that where an
    application for
Charter
relief is before the court, a Summary
    Conviction Court retains jurisdiction to address the issue of costs. The Superior
    Court judge, citing
Fach
, stated:

[I]t is conceded by counsel that Westman J. accepted that there
    was an application pursuant to s. 24(1) of the
Charter
before him. If
    that be so, then he retained jurisdiction to consider the issue of costs,
    perhaps if only in circumstances of abuse or some other flagrant impropriety
    on the part of the Crown in withdrawing the charges.

[35]

There is no question that statutory courts have jurisdiction to
    hear applications for
Charter
relief, and grant costs as part of a
    remedy under s. 24(1):
R. v. Tiffin
,

2008 ONCA 306, 90 O.R.
    (3d) 575;
Dunedin
, at para. 97. But this implied power is not without
    parameters. Specifically, the implied power is linked to the courts control of
    its trial process:
Dunedin
, at para. 81.

[36]

Applying
Dunedin,
I conclude that the Summary Conviction
    Court judge has no jurisdiction to hear the costs application in this case for
    several reasons. First, the courts process is not invoked when the Crown
    exercises its prerogative to enter a stay pursuant to s. 579 of the
Criminal
    Code
. Second, neither the Superior Court of Justice nor the Summary Conviction
    Court has jurisdiction to entertain an application for an alleged breach of a
Charter
right once a stay is entered pursuant to s. 579. Third, a principled approach to
    the question of jurisdiction of statutory courts to award costs, as set out in
Dunedin
,

does not support a conclusion that the Summary Conviction Court judge in
    this matter retained jurisdiction to hear the costs application after the
    Crown-directed stay.

[37]

To the first point, an important distinction between
Fercan
and this case arises from the power invoked by the Crown under s. 579 of the
Criminal
    Code.
Section 579(1) states that:

The Attorney General or counsel instructed by him for
    that purpose may, at any time after any proceedings are commenced and before
    judgment,
direct the clerk or other proper officer of the
    court to make an entry on the record that the proceedings are stayed by his
    direction
[Emphasis added.]

[38]

It is the Attorney General or his agent who is in control. The
    entry of a stay is an administrative act beyond the direction or control of the
    trial judge:
R. v. Jones
(1996), 5 C.R. (5th) 364 (C.A.);
Balderstone
    v. R.
(1983), 23 Man. R. (2d) 125 (C.A.)
.
    Once the Crown has exercised its right under s. 579 to direct a stay of
    proceedings, the judge, whether a Summary Conviction Court judge or a Superior Court
    judge, is
functus
:
R. v. Smith,
(1992), 79 C.C.C. (3d) 70
    (B.C.C.A.), leave to appeal to S.C.C. dismissed for delay, [1993] S.C.C.A. No.
    7.

[39]

Clearly, in a situation where a trial judge comes to a final
    disposition in a matter, including entering a judicial stay of proceedings, he
    or she retains jurisdiction to craft an appropriate remedy for a
Charter
violation,
    including awarding costs, where appropriate. That is because a remedy under s.
    24(1) of the
Charter
, in those circumstances, is part of the trial
    judges discretionary adjudicative process. In
Fercan
, for example,
    the application judge concluded that the Crowns forfeiture application was
    meritless and that the Crowns overall conduct rose to the level of a marked
    and unacceptable departure from the standard expected of the Crown. Costs were
    awarded on the basis of the application judges findings, and an interpretation
    of the function and purpose of the forfeiture provisions in the
CDSA
.

[40]

The same cannot be said in circumstances where the Crown
    exercises its discretion to direct a stay of proceedings, a decision which, in
    no way, requires any findings of fact or adjudication of issues, and over which
    the trial judge has no power to interfere.

[41]

Thus, an important part of the foundation for the courts
    conclusion in
Fercan
, the implied power of the court to control its
    own process, is lacking in this case, given the nature of the power granted to
    the Crown under s. 579 of the
Criminal Code
.

[42]

Second, neither the Superior Court nor the Summary Conviction Court
    has jurisdiction to entertain an application alleging a violation of the
    respondents
Charter
rights once a stay has been entered under s. 579
    of the
Criminal Code
. See
Smith
, at p. 80:

Without a Charter consideration, it is clear that once the
    Crown exercises its s. 579 right to direct a stay be entered, the judge hearing
    the prosecution is
functus
and without jurisdiction to proceed
    further. Does the Charter change that? With respect, I think not.

[43]

The following passage from
Smith
, also at p. 80, was
    quoted with approval by Doherty J.A. in
R. v. Larosa
(2002), 166
    C.C.C. (3d) 449 (C.A.), at para. 41 of his reasons:

When the stay has been entered there is no contest between the
    individual and the state. The prosecution has come to an end. The position of
    the accused as against the state is the same as if he had never been charged.
    The individual is not put at jeopardy by the stay. On the contrary, the
    jeopardy he faced as an accused in an ongoing prosecution has come to an end. It
    may be that if in this case a new indictment is preferred, an argument could be
    made that the action of the Crown in staying and preferring a new indictment,
    gives rise to
Charter
violations. However, at the moment a stay is
    entered, and assuming the matter stops there, I can see no possible violation
    of the accuseds
Charter
rights.

[44]

In
Larosa,
the appellants alleged the conduct of the
    Crown during the criminal proceedings, and then in staying the criminal
    proceedings, amounted to an abuse of process, particularly as it related to
    Pagano, an accused for whom extradition to the United States was made possible
    by the Crowns stay of criminal proceedings in Canada. The appellants sought to
    have the stay reviewed and set aside. Doherty J.A. rejected their submissions
    at paras. 42-43 of his reasons and held that even if these claims had merit,
    they would provide no basis for interfering with the Crowns decision to enter
    a stay and would only be germane if criminal proceedings were reinstituted.

[45]

In this case, the respondents do not complain that the Crowns
    entry of a stay was improper. At most, the respondents allege negligence on the
    part of the Crown.
[2]
As this court noted in
R. v. Singh
, 2016 ONCA 108, 28 C.R. (7th) 124 (
Singh
,
    2016), at paras. 33-34, the concept of marked and substantial departure
    indicates a deviation from a norm that goes beyond negligence.

I agree
    with the Superior Courts comments on the
certiorari
application that
    it is highly debatable whether a costs remedy would be appropriate in this
    case, and more importantly, that the application should only be entertained in
    circumstances of abuse or some other flagrant impropriety on the part of the
    Crown in withdrawing charges. It was the respondents prerogative to not
    challenge the Crowns decision to stay the proceedings. Indeed, the decision
    meant that the respondents no longer faced the jeopardy of being convicted, nor
    would they need to expend any further resources in defending themselves. In the
    absence of an argument that the Crown acted improperly by directing a stay,
    there was no basis for the Summary Conviction Court judge in this case to
    conclude that he had jurisdiction to hear a costs application. Nothing in the
    jurisprudence suggests that, in circumstances such as the present, the power of
    the Attorney General to stay proceedings is circumscribed by the courts
    implied power to control its own process. The stay pursuant to s. 579 brought
    proceedings to an end.

[46]

Neither the Superior Court nor the Summary Conviction Court would
    have had jurisdiction to entertain an application for costs once the stay was
    entered. Thus, the argument that the Summary Conviction Court should have
    jurisdiction to award costs because the Superior Court has jurisdiction to do
    so, another key element of LaForme J.A.s reasoning in
Fercan
, does
    not assist the respondents.

[47]

Finally, while
Dunedin
supports a flexible and
    functional approach to determining the power of statutory courts to award
Charter
remedies, nothing in the jurisprudence suggests that the test for
    determining jurisdiction set out in
Dunedin
has been abandoned

in
    favour of an
ad hoc
approach to determining jurisdiction based on a
    partys request to litigate costs or obtain particular relief. The notice the
    respondents provided in this case, whether proper notice or not, does not
    determine the courts jurisdiction to hear the application after the stay was
    entered. Nor is the question of jurisdiction discretionary based on the
    applicants financial position, or a judges personal view of what is fair.

[48]

Rather,
Dunedin
recognized that there will be
    circumstances where costs awards are integrally connected to the function of
    the statutory court and the courts ability to control its trial process by
    disciplining conduct on the part of the prosecution which is not simple
    negligence but which falls far below the standard expected of those
    representing the publics interest and results in the courts process being
    usurped.

[49]

I would reiterate this courts comments in
Singh,
2016 and
R. v. Ciarniello
(2006), 81 O.R. (3d) 561, 41 C.R. (6th) 310 (C.A.),
    leave to appeal to the S.C.C. refused, [2006] S.C.C.A. No. 424, that there
    continues to be a fundamental difference in the purpose for awarding costs in
    the civil context versus the criminal one. Unlike with civil proceedings,
    indemnity and compensation are not the focus of costs awards in the criminal
    context. As noted in
Singh
, 2016, at para. 52, quoting
Ciarniello,
at para. 33, the Crown is not an ordinary litigant, in that the Crown
    prosecutes and makes decisions respecting prosecutions based on the public
    interest. For that reason:

Costs are not usually deployed in criminal law to influence the
    litigation.As the Crown acts in the public interest when conducting criminal
    prosecutions, it is said that its discretion should not be influenced or
    fettered by the threat of a costs award.

[50]

The respondents position all but disregards the fundamentally
    different purpose of costs awards in criminal proceedings.

[51]

Finally, I would simply note that the fact that
Fercan
involved an innocent third party by-stander, as opposed to an accused person,
    is important. First there is a significant access to justice issue as a
    bystander may incur significant legal costs to enforce his or her
Charter
rights. Second a bystander is in a more vulnerable position than an accused
    person since the rules of criminal procedure, which afford accused persons
    procedural protections, are not available to bystanders. Third, the rationale
    for limiting costs awards in favour of accused persons to cases of Crown
    misconduct does not apply with the same force to bystanders. These differences
    may justify a lower threshold for Crown misconduct:
Ciarniello
, at
    paras. 40-42.

[52]

Therefore, I conclude that the Summary Conviction Appeal Court
    judge erred in holding that jurisdiction to conduct an inquiry into costs
    existed notwithstanding the stay of proceedings under s. 579 of the
Criminal
Code.

D.

Disposition

[53]

For the reasons given above, the rationale in
Fercan
for
    giving the provincial court jurisdiction to award costs as a result of
    forfeiture proceedings having been taken against an innocent third party
    by-stander does not apply here. The Summary Conviction Courts mandate is to
    decide criminal cases that can lead to imprisonment for six months or less. It
    has the implied power to discipline the Crown in rare instances when its
    process has been abused. When, as here, the Crown has directed the entry of a
    stay and no challenge has been raised to its conduct in doing so, it is not
    necessary to the discharge of the Summary Conviction Courts mandate for it to
    entertain an application for costs. Applying the functional and contextual
    approach set out in
Dunedin
, I conclude that the Summary Conviction
    Court judge became
functus
upon the Crowns exercise of its discretion
    to stay the proceedings.

[54]

For these reasons, I would allow the appeal and grant
certiorari
prohibiting the respondents application for costs from continuing.

Released: K.M.W. November 8, 2016

Karen M. Weiler J.A.

I agree Janet Simmons
    J.A.

I agree Gloria Epstein
    J.A.





[1]
Section 579(2) of the
Criminal Code
provides that the proceedings stayed
    may be recommenced within the limited time frame of one year after the entry
    of the stay of proceedings, or before the expiration of the time within which
    the proceedings could have been commenced, whichever is the earlier, without
    laying a new information. Since this was a summary conviction matter, the time
    within which the proceedings could have been commenced is six months. Unless
    the Crown gives notice that it is going to recommence proceedings within that
    time frame, the proceedings shall be deemed never to have been commenced.
    Although the Crown could have reinstituted proceedings within six months, that
    time has now elapsed.



[2]
The respondents costs application alleged: 1) the CRA was negligent in
    advancing an Information to Obtain search warrants that did not disclose
    reasonable grounds for the issuance of the search warrants; 2) the Crown did
    not bring a timely application to have their prior counsel removed due to a
    conflict of interest; 3) the Crown prevented the respondents from bringing an
    application to have the evidence obtained from the search warrants excluded; 4)
    the Crown failed to exercise reasonable care in assessing the reasonableness of
    the grounds contained in the Information to Obtain the search warrants; and 5) the
    Crown failed to consider the reasonableness of any of the areas the respondents
    proposed to cross-examine the Affiant of the Information to Obtain.


