COURT OF APPEAL FOR ONTARIO ROSENBERG, GOUDGE and SIMMONS JJ.A.
HER MAJESTY THE QUEEN )
Alan D. Gold For the appellant
) David Lepofsky
– and – ) And Lance Beechener
) For the respondent
JERRY GLEN CHAPMAN (a.k.a. ) GLENGARRY CHAPMAN; )
GLENGERRY CHAPMAN) )
and Jennifer Trehearne for the intervener
The Criminal Lawyers’ Association of Ontario
) Heard: November 28, 2005
On appeal from the costs order made by Justice John R. McIsaac of the Superior Court of Justice on April 29, 2003.
The appellant appeals from an order made by McIsaac J. on April 29, 2003 requiring that the appellant pay to the Simcoe County Children’s Aid Society (the “CAS”) the costs of an unsuccessful third party records application.1
The appellant was charged and eventually convicted of several offences involving a former girlfriend. During the course of the criminal proceedings, the appellant brought an application under s. 278.3 of the Criminal Code for the
1 This appeal was heard together with the appellant’s conviction appeal on the charges to which the third party records application related. By separate reasons released concurrently with these reasons, we dismissed the appellant’s conviction appeal.
production of records relating to the complainant in the hands of the CAS. Following the dismissal of the application, the CAS requested costs. The request was adjourned pending completion of the trial and was ultimately heard on the date set for sentencing.
In addition to its request for costs, the CAS sought an order that any costs awarded be payable personally by defence counsel at trial (not Mr. Gold). The stated basis for this request was defence counsel’s failure to serve supporting material in advance of the return date of the application, and the absence of any evidence on the application linking the CAS to the complainant, the complainant’s son or the appellant. However, given that the CAS had not provided defence counsel with advance notice of this aspect of its request, the trial judge declined to entertain submissions alleging misconduct on the part of defence counsel.
The CAS did not file a bill of costs on the costs hearing. However, CAS counsel made an oral request for costs of the application fixed at $1000 plus costs of the costs hearing. Trial counsel for the appellant took issue with some of the facts relied on by CAS counsel on the costs application, but otherwise declined to make submissions in response. Crown counsel made no submissions concerning the CAS’s request for costs.
On June 3, 2003, the trial judge released written reasons for his costs award. He addressed the issues before him under two headings: i) Does this court have jurisdiction to grant the relief requested; and ii) If so, should the relief be granted?
Although he referred to the inherent jurisdiction of the Superior Court as the jurisdictional basis for making costs awards against the Crown in other cases, the trial judge relied on R. v. 974649 Ontario Inc. (2001), 159 C.C.C. (3d) 321 (S.C.C.) in holding that he had jurisdiction to make the requested order. Significantly, the trial judge rejected ‘fault’ on the part of the accused as a basis for a costs award in favour of a record holder. He said:
The involvement of the third party is collateral to the adversarial contest between the prosecution and the accused….the hearing requires a “delicate balancing” of different Charter-protected interests. Accordingly, I do not view “fault” on the part of the accused as the basis for an award of costs to a custodian. These third parties cannot be expected to assess the legitimacy of the accused person’s claim for disclosure in a vacuum. They should be concerned about the protection of the client or patient’s privacy and equality rights both personally and institutionally and leave the legitimacy of the accused’s claim to the court for resolution. In the normal course, I see no reason to limit the award
of costs to cases where the accused’s claim contains elements of egregious conduct, although such a circumstance could increase the award [emphasis added].
Subsequently, in addressing the merits of the CAS’s request, the trial judge referred again to the “delicate balancing” of interests required on a third party records application and said, “I do not think it serves those interests or the administration of justice well to have them advanced on a self-represented basis.” While noting that granting the relief could have a “chilling effect” on meritorious applications, “thereby compromising full answer and defence”, the trial judge observed that other defence decisions (such as retaining an expert) also involve a cost/benefit analysis.
The trial judge concluded by holding that publicly funded institutions, such as the CAS, should not have to choose between fulfilling their child protection responsibilities and responding to third party records applications:
The monies earmarked for those serious cases should not be diverted to serving gratuitously the interests of accused persons who are seeking disclosure of CAS records. I see no reason for subsidizing such efforts, even though they are advanced in the interests of preventing wrongful convictions. The principles of fundamental justice only demand a fair balance between these competing interests, not a perfect balance [citation omitted].
Both the appellant and the intervener, The Criminal Lawyers’ Association of Ontario, contend that the trial judge erred in holding that he had jurisdiction to make a costs order against an accused person in a criminal case based on a failed third party records application.
The appellant submits that there is no statutory authority for making such an order, and that the trial judge erred in relying on R. v. 974649 Ontario Inc., supra, as the jurisdictional basis for making a costs order against an accused person. As for the inherent jurisdiction of a Superior Court to make a costs order in a criminal case to control its own process, the appellant contends that there is no support in any Canadian jurisprudence for making a costs order against an accused person on that basis. Moreover, policy reasons dictate that, absent specific statutory authority, a costs order should never be made against an accused person.
The intervener submits that a costs order should never be made against an accused person in a criminal case both because such orders are to be discouraged for policy reasons and because they are unnecessary.
While the broad issues raised by the appellant and the intervener are important, I consider it appropriate, for five reasons, to dispose of this appeal on a much narrower basis.
First, there is no general statutory authority for a trial judge to make an award of costs in indictable matters. Prior to 1954, s. 1044 of the Criminal Code specifically authorized an award of costs against an accused person following a conviction for treason or any indictable offence: R.S.C. 1927, c. 36. Section 1044 was repealed in 1954: see Criminal Code, S.C. 1954, c. 51, s. 745.
Second, I agree that the trial judge erred in relying on R. v. 974649 Ontario Inc., supra, as supporting his finding that he had jurisdiction to make the requested order. That case involved an award of costs to an accused person under s. 24(1) of the Charter arising from the Crown’s failure to comply with its disclosure obligations. This case involves an award of costs against an accused and is not founded on a Charter breach.
Third, to the extent that a Superior Court may have inherent jurisdiction to make a costs order in a criminal matter against an accused person, the Crown concedes, and I agree, that the trial judge erred by departing from the general principles governing the making of such an award, thereby fashioning a legal standard that makes it easier to obtain a costs award against an accused person than it is to obtain a costs award against the Crown.
In this respect, I observe that the jurisdiction in issue is not a broad discretionary jurisdiction, but rather is based on the inherent jurisdiction of the court to control its own process. In Attorney-General of Quebec et al. v. Cronier (1981), 63 C.C.C. (2d) 437 (Que. C.A.), L’Heureux-Dubé J.A. described that jurisdiction as follows, at pp. 449 and 451:
[TRANSLATION] A superior court has the power to maintain its authority and to control its procedure so as to put justice in order and efficiently. That this implies sometimes ordering one of the parties and even lawyers to pay the costs of a proceeding in cases of the abuse or of the frivolity of proceedings, of misconduct or dishonesty or of taken for some other ulterior motive, is a recognized principle. But the conditions for the exercise of this inherent power must exist.…
In my view, nothing in the present case authorized the Superior Court Judge to order the appellants to pay costs by virtue of his inherent powers of control and supervision. On the one hand, the Judge cannot authorize himself to do indirectly what the Canadian criminal law does not expressly authorize him to do, in the present case, the ordering to pay costs with respect to extraordinary remedies in criminal matters. In the absence of reprehensible conduct by the appellants, or a serious affront to the authority of the Court or of a serious interference with the administration of justice, which is not the present case, the imposition of costs on appellants in the context of the present debate is in no way justified.
In this case, by rejecting fault or some form of conduct requiring censure as at least an element of what is necessary to justify a costs award in a criminal matter, the trial judge erred in principle. Therefore, the costs order cannot stand on the basis on which it was made.
Fourth, the CAS has chosen not to participate in this appeal, and no party to this appeal has made submissions seeking to uphold, on an alternate basis, the costs order made by the trial judge. Accordingly, it is unnecessary that I determine the broad issue of whether there is jurisdiction to make a costs order in a criminal matter against an accused person.
Fifth, defence counsel at trial did not make substantive submissions on the costs issue and the intervener did not appear on the costs application before the trial judge, although invited to do so. Moreover, as already noted, the trial judge declined to hear submissions premised on the misconduct of trial counsel. In the result, this court does not have the benefit of either a complete record or reasons from the trial judge concerning the broader issues raised on appeal. Given all of the circumstances, I do not consider that this is an appropriate case in which to consider those issues.
Based on the foregoing reasons, I would allow the appeal and set aside the costs order made by the trial judge.
Released: January 20, 2006 “MR”
“Janet Simmons J.A.”
“I agree M. Rosenberg J.A.”
“I agree S.T. Goudge J.A.”