Rights and Freedoms for alleged violations of their Charter rights. The summary
conviction trial judge held that the informal communication to the Crown that
the defendant would seek costs if the charges were stayed was sufficient to preserve the judge’s right to award costs. The summary conviction court allowed an
application by the accused for costs against the Crown. The court held that
defence counsel’s advice to the Crown that the accused intended to seek costs was
an informal application for relief under s. 24(1) made prior to the entry of the
stay which preserved the court’s right to deal with the issue. The Crown applied
for certiorari to quash that decision for lack of jurisdiction. The application was
dismissed. The Crown appealed.
Held, the appeal should be allowed.
Statutory courts, such as a summary conviction court, have jurisdiction to
grant costs as a remedy for Charter violations pursuant to s. 24(1) of the
Charter. In this case, there was no jurisdiction to entertain the Charter motion.
First, the Crown does not invoke the court’s process when it enters a stay of
proceedings. Second, neither the Superior Court of Justice nor a summary conviction court have jurisdiction to entertain a motion relating to a breach of an
alleged Charter breach after a stay has been entered by the Crown. Finally,
there is no basis to conclude that a statutory court could retain jurisdiction to
award costs after a Crown-directed stay. A Crown-directed stay is distinguished
from a court-ordered stay. In the latter case, the trial court would have jurisdiction to provide a remedy for an alleged Charter breach, as part of the judge’s
discretionary adjudicative process.
Where, as here, there was no challenge to the conduct of the Crown in entering
the stay, it was not necessary to the discharge of the summary conviction court’s
mandate for it to entertain an application for costs.
R. v. Ciarniello (2006), 81 O.R. (3d) 561, [2006] O.J. No. 3444, 270 D.L.R. (4th)
365, 215 O.A.C. 29, 211 C.C.C. (3d) 540, 41 C.R. (6th) 310, 144 C.R.R. (2d) 81,
70 W.C.B. (2d) 653 (C.A.) [Leave to appeal to S.C.C. refused [2006] S.C.C.A.
No. 424]; R. v. Fach, [2004] O.J. No. 4637, 192 O.A.C. 104, 191 C.C.C. (3d) 225,
65 W.C.B. (2d) 665 (C.A.); R. v. Larosa, [2002] O.J. No. 3219, 163 O.A.C. 108,
166 C.C.C. (3d) 449, 98 C.R.R. (2d) 210, 55 W.C.B. (2d) 52 (C.A.); R. v. Singh
(2016), 129 O.R. (3d) 241, [2016] O.J. No. 665, 2016 ONCA 108, 28 C.R. (7th) 124,
349 C.R.R. (2d) 238, 334 C.C.C. (3d) 481, 343 O.A.C. 385, 128 W.C.B. (2d) 453,
consd
R. v. Fercan Developments Inc. (2016), 130 O.R. (3d) 321, [2016] O.J. No. 1925,
2016 ONCA 269, 28 C.R. (7th) 148, 397 D.L.R. (4th) 534, 335 C.C.C. (3d) 519,
347 O.A.C. 262, 129 W.C.B. (2d) 449, distd
R. v. 974649 Ontario Inc. (c.o.b. Dunedin Construction (1992)), [2001] 3 S.C.R.
575, [2001] S.C.J. No. 79, 2001 SCC 81, 206 D.L.R. (4th) 444, 279 N.R. 345,
J.E. 2002-9, 154 O.A.C. 345, 159 C.C.C. (3d) 321, 47 C.R. (5th) 316, 88 C.R.R. (2d)
189, REJB 2001-27030, 51 W.C.B. (2d) 452, apld
Other cases referred to
R. v. Balderstone, [1983] M.J. No. 207, 4 D.L.R. (4th) 162, [1983] 6 W. W.R. 438,
23 Man. R. (2d) 125, 8 C.C.C. (3d) 532, 6 C.R.R. 356, 10 W.C.B. 313 (C.A.);
R. v. Conway, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22, 2010 SCC 22, 75 C.R.
(6th) 201, 320 D.L.R. (4th) 25, 255 C.C.C. (3d) 506, 402 N.R. 255, 263 O.A.C. 61,
211 C.R.R. (2d) 326, 2010EXP-1926, J.E. 2010-1051, EYB 2010-175167, 1 Admin.
L.R. (5th) 163, 88 W.C.B. (2d) 441; R. v. Fercan Developments Inc., [2013] O.J. No.
748 (C.J.); R. v. Jones (1996), 5 C.R. (5th) 364 (C.A.); R. v. Singh (2014), 120 O.R.
