Costs Against the Crown (POA/Criminal)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-25
CLNP Page ID:	1799
Page Categories:	[Provincial Offences]
Citation:	Costs Against the Crown (POA/Criminal), CLNP 1799, <4f>, retrieved on 2024-04-25
Editor:	Sharvey
Last Updated:	2021/11/08

Provincial Offences Act, R.S.O. 1990, c. P.33

129 (1) Where an appeal is heard and determined or is abandoned or is dismissed for want of prosecution, the court may make any order with respect to costs that it considers just and reasonable.

(2) Where the court orders the appellant or respondent to pay costs, the order shall direct that the costs be paid to the clerk of the trial court, to be paid by the clerk to the person entitled to them, and shall fix the period within which the costs shall be paid.

(3) Costs ordered to be paid under this section by a person other than a prosecutor acting on behalf of the Crown shall be deemed to be a fine for the purpose of enforcing its payment. R.S.O. 1990, c. P.33, s. 129.

Oshawa (City) v. 536813 Ontario Limited, 2016 ONCJ 665 (CanLII)

(ii) Jurisdiction to order costs for other than Charter violations:

[15] Although it has been clearly determined that this Provincial Offences Court has jurisdiction to award costs against the Crown in appropriate Charter violation cases, I must now determine whether the scope of such jurisdiction extends beyond Charter matters.

[16] As stated above in 974649 Ontario Inc., supra, at para. 70, as a statutory court of law, the Provincial Offences Court basically does not possess any inherent jurisdiction, other than what is derived from statute. This Court has the powers expressed conferred upon it and, by implication, any powers reasonably necessary to accomplish its mandate. Jurisprudence has clearly recognized that statutory courts possess certain implied powers as courts of law, so as to allow them to maintain the rule of law and the integrity of the court.

[17] In the Provincial Criminal Courts, the power to award costs against the Crown extends beyond the breach of Charter rights. In R. v. Fercan Developments Inc., 2016 ONCA 269, LaForme J.A., writing for the Court of Appeal, determined that a provincial court hearing an application for forfeiture under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, [“CDSA”] has an implied power to award costs in appropriate circumstances. Three reasons led the Court to that conclusion:

(1) The power to award costs is derived from the authority, possessed by every court of law, to control its own process;

(2) The breadth of a provincial court’s mandate under the CDSA suggests that it has an implied power to award costs; and

(3) Given the statutory context in which the provincial court hears forfeiture applications, this implied power is reasonably necessary for it to discharge its mandate in a fair and efficient manner.

[18] These three reasons guide me in my determination of whether this Provincial Offences Court has an implied power to award costs in the matter before me. I have already addressed the first reason, as the jurisprudence clearly establishes that the Provincial Offences Court has the authority to control its own process.

[19] Next, I am satisfied that the mandate of the Provincial Offences Court extends to determining the constitutional applicability of a legislative provision [R. v. Canadian National Railway Co., supra]. In Fercan Developments Inc., supra, the forfeiture application could have been heard in either the Ontario Court of Justice or the Superior Court of Justice. Here, too, the constitutional application could have been heard either in this Court or in the Superior Court of Justice. In fact, the defendant commenced such an application in which it requested that that Court read down the provisions of the Building Code Act, 1992, so as to not apply to the defendant’s property, which falls under the exclusive federal powers over aeronautics. Although the two courts do not function exactly the same in respect of the remedy that would flow from a successful constitutional challenge, both proceedings are based on the constitutional doctrine of interjurisdictional immunity and, in either court, the practical outcome for this defendant would be identical.

[20] Moreover, in light of the Superior Court’s power to award costs, depriving the Provincial Offences Court of that same power is undesirable. A contest as to which court the constitutional challenge should be brought would frustrate the legislatively established structure of the courts system. This is not what Parliament or the legislature could have intended. Yet without the power to award costs in cases such as this, the defendant would be deprived of the ability to obtain costs where it otherwise would be entitled to them in Superior Court. And forcing the defendant to bring a separate application in Superior Court for a proceeding heard in the Provincial Offences Court would necessitate re-litigation of a significant portion of the defendant’s case. Analogous to such duplication for Charter motions, this carries with it added delays and expenses, which, in effect, could deny the defendant access to a remedy in a court of competent jurisdiction. Such bifurcation is neither desirable nor an efficient way for our courts to operate. The jurisdiction to award costs is necessary for any court of law to control its processes and maintain the integrity of the courts processes and public confidence in the administration of justice.

[21] Finally, the broad jurisdiction to consider constitutional questions is also contemplated in s.109 of the Courts of Justice Act, R.S.O. 1990, c. C.43:

109. (1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

1. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.

2. A remedy is claimed under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

…

(6) This section applies to proceedings before boards and tribunals as well as to court proceedings.

[22] There is no principled reason to have jurisdiction to award costs for a Charter breach, but not following a ruling on a constitutional question.

[23] The ability to award costs as a sanction responsive to the unacceptable standard of prosecution, is inherent jurisdiction of any court of law to control its own process, is reasonably necessary given Provincial Courts’ mandate to decide constitutional issues and in order for this Court to discharge its mandate. For all of these reasons, I find that this Provincial Offences Court has jurisdiction to award costs in the constitutional challenge that is before me.

R. v. Kocet, 2016 ONCJ 329 (CanLII)

[6] The recent decisions of the Ontario Court of Appeal in Singh and Fercan have clarified the law with respect to costs awards against the Crown in criminal cases. Costs awards, in the rare circumstances where they are appropriate, are integrally connected to the court’s control of its trial process, and are intended as a means of disciplining and discouraging behaviour. There is a compensatory element to such awards, but the concepts related to costs awarded in civil litigation do not apply in the criminal context. The reasons for costs awards in those two systems are different. The Crown in a criminal case is not an ordinary litigant, and an award of costs against the Crown in the criminal context does not focus on the indemnity. In quantifying a costs award against the Crown in a criminal context, the court must exercise discretion having regard for the fact that the funds are coming from the public purse and that the purpose of the costs award against the Crown in a criminal context is to provide a reasonable portion of the cost that an accused incurs to secure his or her Charter rights.

R. v. 1820419 Ontario Inc., 2013 ONCJ 10 (CanLII)

[14] In R. v. Garcia, at para. 13, the Ontario Court of Appeal held that there are generally two broad categories of cases where orders of costs against the Crown have been made. The first category consists of cases where the conduct of the prosecution is said to merit sanction in the form of an award of costs. The second category consists of cases where there has been no Crown misconduct, but other “exceptional circumstances exist such that fairness requires that the individual litigant not carry the financial burden flowing from his or her involvement in the litigation”.

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[21] Section 129 (a) of the POA grants the court discretion to make any order with respect to costs that it considers “just and reasonable”. 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. I do not agree that absent Crown misconduct, the court’s discretion to award costs in provincial offences appeals is limited to test cases. To so hold would be to unduly restrict the plain language and intent of s. 129 of the POA.