[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 Crown’s position is that
the decision in R. v. Fach, [2004] O.J. No. 4637, 192 O.A.C. 104
(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 sum-
mary conviction judge had no jurisdiction to hold a freestanding hearing
on the issue of costs arising from alleged breaches of the respondent’s
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), 130 O.R. (3d) 321, [2016] O.J. No. 1925,
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.
