



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fercan Developments Inc., 2016 ONCA 440

DATE: 20160602

DOCKET: C59112

Laskin, LaForme and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Fercan
    Developments Inc., GRVN Group Inc.

and FirstOntario Credit
    Union Limited

Respondents

Croft Michaelson, Q.C., and Kevin Wilson, for the appellant,
    Her Majesty the Queen

Brian Greenspan and Naomi Lutes, for the respondent,
    Fercan Developments Inc.

William Friedman and Patrick Bakos, for the respondent,
    GRVN Group Inc.

Robert Malen and Robert Drake, for the respondent,
    FirstOntario Credit Union Ltd.

Louis P. Strezos, for the intervener, the Criminal
    Lawyers Association

Heard: November 30, 2015

On appeal from the cost awards of
    Justice Peter C. West of the Ontario Court of Justice, dated January 21, 2015,
    with reasons reported at 2014 ONCJ 779 and at 2015 ONCJ 695.

COSTS ENDORSEMENT

[1]

The Crowns appeal from costs ordered against it in forfeiture
    proceedings under the
Controlled Drugs and Substances Act
, S.C. 1996,
    c. 19, was dismissed by this court on April 14, 2016:
R. v. Fercan
    Developments Inc.
, 2016 ONCA 269. As the respondents had requested that we
    award costs on the appeal, we invited the parties to provide written
    submissions on their entitlement to costs and the quantum of any costs that may
    be awarded.

[2]

The parties submissions have now been received and reviewed. We have
    concluded that we should not award any costs on this appeal.

[3]

In general, courts do not award costs against the Crown in criminal
    proceedings. As noted by this court, at para. 37 of the appeal decision, absent
    a
Charter
infringement, costs will be awarded against the Crown only
    if there is either serious Crown misconduct or if there are exceptional
    circumstances.

[4]

The respondents request for costs of the appeal does not satisfy any of
    those prerequisites.

[5]

First, the Crowns did not display a marked and unacceptable departure
    during this appeal. While this court did find serious Crown misconduct in the
    forfeiture proceedings, there is no reason why that should infect the Crowns
    conduct on appeal. There was merit to the Crowns appeal and it raised
    questions of significant importance and, therefore, the decision to appeal does
    not display a marked and unacceptable departure. The respondents have not
    alleged that the Crowns conduct in this court displayed a marked and
    unacceptable departure.

[6]

Second, although it is clear that the respondents have incurred
    substantial costs because of the forfeiture proceedings, there is no evidence
    that the costs were exceptional or result in unfairness. Moreover, the
    significant costs upheld by this court should ameliorate any financial
    hardship.

[7]

In any event, it appears that s. 683 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, precludes a costs award on this appeal. At the very
    least, due to s. 683, the civil cost provisions that the respondents rely on
    cannot be implied through the
Criminal Appeal Rules
, SI/93-169.

[8]

Accordingly, there will be no costs ordered for this appeal.

John Laskin J.A.

H.S. LaForme J.A.

G. Pardu J.A.


