Costs Against the Crown (POA)
R. v. 1820419 Ontario Inc., 2013 ONCJ 10 (CanLII)
[10] I am satisfied that this court has jurisdiction to make an order for costs on the appeal pursuant to section 129 of the POA.
[18] Having found that the prosecutor was careless in seeking an amendment to the Information in the absence of the defendant, is this sufficient “misconduct” as contemplated by R. v. Garcia, supra, to make an award of costs? The appellant argues that this level of negligence, even though not made in bad faith, is sufficient. I am not satisfied that it is. I come to this conclusion because it is apparent from page 10 of the transcript that the prosecutor believed, based on information in his possession, that the amendment was required to reflect a change in the name of the original defendant, as opposed to substituting one defendant for another. As it turned out, he was wrong. However without evidence showing that the prosecutor knew that he was wrong, or was wilfully blind as to the correctness of his knowledge, I am not satisfied that his conduct was so oppressive or improper as to merit an award of costs against the Crown.
[19] The second category of cases identified by the Court of Appeal in R. v. Garcia, are those cases where such exceptional circumstances exist that fairness requires that the individual litigant not carry the financial burden of flowing from his or her involvement in the litigation. On the facts of this case, I am satisfied that the circumstances of this case fall within this second category.
[24] There is little judicial interpretation of section 129 of the POA or s. 826 of the Criminal Code, as to how the court should decide the quantum of costs. In R. v. Trask, supra, the Supreme Court of Canada held that the intent of the Criminal Code provisions dealing with costs on summary conviction appeals was to provide judges with broad discretion. The court held there are no absolute rules governing costs in summary conviction appeals and it rejected arguments that costs should follow the cause, or that solicitor-client costs should be the norm where there has been a Charter violation.
[25] In the circumstances of this case, I have determined that fairness demands that the appellant be compensated for the financial burden of its involvement in this litigation. The appellant seeks full indemnity, including the cost of arguing the application for costs. I see no reason why the appellant should not be fully compensated. Given the nature and complexity of this case, the amount claimed by the appellant is reasonable.
[26] Accordingly, there will be an award of costs against the Crown in favour of the appellant in the amount of $4,520.00, payable within 30 days.
