R. v. Sarazin et al., 2014 ONCJ 148

Court File and Parties

Court File No.: 3711-999-01-0288 County of Renfrew Date: 2014-03-24 Ontario Court of Justice

Between:

Merv Sarazin, Daniel Lynden Sarazin, Thomas Kohoko, Bruce Meness, Joseph Chartrand, Robert Lavalley, Vincent Lavalee, Raymond Kasaboskie, Grant Tysick, Shawn Johnson — Appellants

— And —

Her Majesty the Queen — Respondent

Before: Justice R.G. Selkirk

Heard on: December 30, 2013

Reasons for Judgment released on: March 24, 2014

Counsel:

• Brian D. Wilkie, for the Crown
• Michael Swinwood, for the defendants

Judgment

SELKIRK J.:

1The Applicants were charged with a hunting offence under the Provincial Offences Act for allegedly harvesting a moose out of season.

2At the commencement of this trial they brought a Charter Application alleging a violation of s.15 of the Charter of Rights and seeking a remedy under s.24(1) of advanced funding in order to pay the fees of two proposed defence witnesses and counsel's fees. The Court decided there was no violation of s.15 and therefore no remedy was ordered.

3The Applicants appeal the dismissal of that motion.

4Jurisdiction to hear an appeal is found in s.116 of the Provincial Offences Act which reads:

116.(1) Where a proceeding is commenced by information under Part 111, the defendant or the prosecutor or the Attorney General by way of intervention may appeal from,

a) a conviction;

b) a dismissal;

c) a finding as to ability, because of mental disorder, to conduct a defence;

d) a sentence; or

e) any other order as to costs.

5The Applicants argue that this appeal falls within the authority of s. 116 (1) (e), that being, "any other order as to costs".

6Two issues arise. The first is whether a dismissal of an allegation of a Charter violation, the remedy for which, if granted, was advanced funding for the defence is an "order as to costs" and therefore giving me jurisdiction to hear the appeal.

7The second issue is whether or not this is an interlocutory appeal which is not permitted under the Provincial Offences Act.

8In my view, both of the above issues deny me jurisdiction to hear this appeal.

9The dismissal of a pre-trial motion alleging a breach of a Charter right is not a final order in the circumstances of this case. It does not result in a conviction, a dismissal, a finding as to a mental disorder, a sentence or a costs order. It does not decide the issue between the parties. The ruling by the trial Court is not an order as to costs. It is an order dismissing the allegation of a breach of s.15 of the Charter of Rights.

10In Ontario Securities Commission v. Caratel Ltd., 1992 CanLII 7400 (ON SC), 1992 O.J. 1910, a decision of Then J sitting in the General Division of Ontario as the Court was then known addressed interlocutory appeals under the Provincial Offences Act. I note that the Ontario Court of Appeal dismissed an appeal of his decision at 1993 CanLII 8597 (ON CA), 12 O.R. (3d) 319.

11Then J, wrote at page 7 of 11:

I agree with the submission of the respondent that s.116, as did s.99 previously, grants the applicant a right to appeal his conviction and thereby the pre-trial ruling of the trial judge as it may have affected his jurisdiction to conduct the trial to this court (previously to the county or district court) at the end of the trial. See W. Douglas Drinkwalter and J. Douglas Ewart, Ontario Provincial Offences Procedures (Toronto: Carswell, 1980), at p. 310.

However, there is no right of appeal to this court at this stage from the ruling of the trial judge on the pre-trial motion. In my opinion, had the legislature intended to grant a right of appeal at this stage then the right of appeal would have been stated as one from a "conviction or order" rather than merely from "conviction". An adverse ruling prior to plea on a motion to quash the information is not a "conviction" within the meaning of s.116(1). Moreover, the term "dismissal" in s. 116(1) (previously s.99(1)) does not refer to the dismissal of the motion to quash but in context refers to the right of the Attorney General to appeal from the dismissal of the charge or from a disposition which is tantamount to the acquittal. An example of the latter situation involving as in the present case both s. 99(1) (now s.116(1)) of the POA and s.125(1) (now s.129(1)) of the Securities Act, is to be found in Ontario Securities Commission v. International Containers Inc. and Kolton, unreported, June 19, 1989, Carruthers J. (Ont. H.C.J.).

12S. 116 of the POA does not allow for an appeal of a ruling made pre-trial unless the order was to grant a remedy of funding and which stayed the prosecution until such funding was provided. A stay is tantamount to a dismissal and thus an appeal would lie from an order such as that but that is not the case here.

13The reason s.116 does not allow for interlocutory appeals is, no doubt, captured by the reasoning of the S.C.C. in R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 at para 276, where the Court writes:

If we recognize some priority arising out of an allegation of a breach of a Charter right so that it is somehow lifted from the ordinary flow of cases and given a special right of immediate interlocutory appeal, I fear that the confusion which would result would far outweigh any benefit which successful individuals would achieve. Furthermore, there is no guarantee that an interlocutory appeal will accelerate the process. Rather, experience has shown that the interlocutory motion or appeal has all too frequently been the instrument of delay. In my view, it does not follow that interlocutory appeals will hasten the process. They are far more likely to delay the disposition of cases and would themselves tend to prolong the proceedings involved in the determination of Charter infringement. The history of this case affords an example.

14The Applicants rely on two Alberta decisions for their position. They are R. v. Caron and R. v. Krueger. I believe these decisions are distinguishable in that they both deal with final orders.

15In Caron it was a decision to grant a costs award for a breach of s.11(d). It was, as such, a final, stand alone order which would not be affected by further proceedings. I note that costs were upheld on appeal in Caron but based on the Okanagan principles and that the issue was decided after the trial.

16R. v. Krueger is a case of Crown misconduct wherein the trial judge stayed the charges as a result and awarded costs. As stated above there is clear authority that a stay is the equivalent of a dismissal and thus is a final order which can be appealed. Krueger does not assist the Applicants in this case.

17R. v. Bidal is a case not dissimilar from the one at bar. Nadeau J expressed some misgivings about whether the appeal pertained to "costs" but decided he would consider the merits of the appeal. He went on to dismiss the appeal. However, as the matter goes to jurisdiction, I am not prepared to deal with the appeal unless satisfied I have jurisdiction to do so.

18As an aside, if I did have jurisdiction it would be exercised by ruling that I agree with the reasoning in Bidal both at trial and on appeal and dismiss this appeal based on those reasons. I would find that the learned Justice of the Peace made no error in fact or law and would uphold her decision.

19However, I do not believe I have jurisdiction to make that determination not only because it is an interlocutory matter but also because this is not an appeal of a costs order under s. 116(1) (e). It is an appeal of a ruling dismissing an allegation of a violation of s.15 of the Charter.

20This is not an application for advanced funding such in Rowbotham or Okanagan. The Applicants expressly admit this point. There are no grounds and no evidence upon which to make an order based on those regimes and none was sought.

21I am not aware of any decisions in which the term "costs" as used in s.116 of the POA is defined. Nor is it defined by the POA itself.

22In the Dictionary of Canadian Law, 3rd edition, 2004, published by Thomson-Carswell, costs is defined as:

1. An award made in favour of a successful or deserving litigant, payable by another litigant, the award of which is determined at the end of proceedings, payable by way of indemnity for allowable expenses and services relevant to the proceeding and not payable to ensure participation in the proceedings….

23What is apparent from this definition is that costs mean an amount of money ordered by way of indemnity for allowable expenses and services relevant to the proceedings and not payable to ensure participation in the proceedings.

24"Costs" are discussed in s. 138(3) of the POA under the heading, "Powers of court on appeal". It reads:

Upon an appeal, the court may make an order under section 60 for the payment of costs incurred on the appeal, and subsection (3) thereof applies to the order.

25Section 60 reads:

60. (1) Fixed costs on conviction - Upon conviction, the defendant is liable to pay to the court an amount by way of costs that is fixed by the regulations.

(2) Costs respecting witnesses – The court may, in its discretion, order costs towards fees and expenses reasonably incurred by or on behalf of witnesses in amounts not exceeding the maximum fixed by the regulation, to be paid,

(a) to the court or prosecutor by the defendant; or

(b) to the defendant by the person who laid the information or issued the certificate, as the case may be,

but where the proceeding is commenced by means of a certificate, the total of such costs shall not exceed $100.

(3) Costs collectable as a fine - Costs payable under this section shall be deemed to be a fine for the purpose of enforcing payment.

26The costs discussed in s.60 of the POA are costs already incurred for such things as fees and expenses and are imposed as part of a possible sentence. There is no reference to advanced funding.

27I cannot find that the term "costs" as used in s.116 can be read to include funds necessary to pay the expenses of defence witnesses and defence counsel in advance of the trial.

28I believe the reference to costs in s.116(1)(e) refers to the costs as set out in s.60 of the POA as one could see that an error in an award of costs for fees and expenses already incurred by the defendant upon conviction would need to be addressed by way of an appeal.

29S. 116 (1) (e) does not therefore infer jurisdiction upon me to hear this appeal.

30For the above reasons this appeal is dismissed for lack of jurisdiction.