COURT OF APPEAL FOR ONTARIO

DATE: 20000216

DOCKET: C31621

RE: HER MAJESTY THE QUEEN (Appellant) and VICTOR VERI
(Respondent)

BEFORE: CARTHY, CHARRON AND SHARPE JJ.A.

COUNSEL: Christine Bartlett-Hughes
For the appellant

Dean Paquette
For the respondent

HEARD: February 9, 2000

On appeal from the order of Borkovich J. dated January 29, 1999,
allowing a summary conviction appeal from the order of Bennett
J., and ordering costs in favour of the respondent.

E N D O R S E M E N T

[1] The Crown seeks leave to appeal from the order of the
summary conviction appeal court judge granting the respondent’s
application under s.7 and s.24(1) of the Charter and awarding him
costs against the Crown in the amount of $5,000. The order was
made on the respondent’s appeal from the trial judge’s refusal to
award him costs at the conclusion of the Crown’s unsuccessful
prosecution on a charge of careless storage of a firearm contrary
to s.86(2) of the Criminal Code.

[2] The Crown submits that the summary conviction appeal court
had no jurisdiction to hear the appeal and, alternatively, that
the appeal court judge erred in law in granting the respondent’s
Charter application.

[3] On the jurisdiction issue, our conclusion is that the appeal
was available. A Charter claim was made and either disposed of
or the trial judge failed to deal with it. In either event,
s.830(1) gives a right of appeal.

[4] We agree with the summary conviction appeal judge that the
trial judge did not afford the respondent an adequate opportunity
to present his s. 7 Charter application. While the trial judge
entertained brief submissions on the point, he did so only after
announcing that he would refuse costs, and the respondent was not
permitted to present his argument fully. However, the matter was
fully presented to the summary conviction appeal judge. Both
parties opted for a decision on the point from him rather than
have the matter remitted to the summary conviction court.
Accordingly, any failure to provide an adequate hearing was
remedied on appeal.

[5] In our view, the summary conviction appeal judge erred in
law in concluding that the conduct of the Crown in pressing on to
trial with these charges constituted a breach of s. 7 of the
Charter and that a costs award was an appropriate remedy under s.
24(1). The summary conviction appeal judge appears to have based
his order at least in part on the ground that the respondent’s
rights were breached by virtue of his arrest on another charge,
acknowledged by the Crown as being defective. That charge was not
pursued and this point was expressly disclaimed by the respondent
on the Charter application. The summary conviction appeal judge
described the conduct of the Crown as “egregious” but he did not
explain the basis for that finding. We are not satisfied that
there are any facts to support it. In his submissions before the
summary conviction appeal court, counsel for the respondent
disclaimed any allegation of malicious prosecution or that the
investigating officer lacked an honest belief that there were
reasonable grounds for the charge. We do not accept the
proposition that a s. 7 breach is made out simply because the
Crown has proceeded with charges despite notice from the defence
of its position that, on the facts, the conduct is not culpable.
In our view, there were arguable points of interpretation,
namely, whether the firearm was being stored or transported and,
if it was being stored, whether a vehicle is a “container” for
the purposes of the regulation. The Crown failed to persuade the
trial judge that an offence was made out, but there is nothing to
support a finding that the Crown’s conduct was oppressive or high
handed. Dismissal of charges on a motion for non-suit does not,
per se, constitute a Charter breach. This is particularly so in
this case where it would appear that the trial judge may have
applied the wrong test on the motion for non-suit. On two
occasions, he stated that he would have had difficulty in making
a finding beyond a reasonable doubt. Further, in his summary
dismissal of the respondent’s application, he stated that “there
was an issue that had to be dealt with one way or the other”.

[6] Although it is not clear whether the respondent sought an
order for costs under the Criminal Code, we note that the record
would not support such an order in any event.

[7] It is well established that under s.809 (1) of the Criminal
Code, costs will only be awarded where there is “oppressive or
improper conduct” on the part of the Crown in bringing the
proceedings, or where there are special circumstances such as the
prosecution being used as a test case: Trask v. R. (1987), 37
C.C.C. (3d) 92 (S.C.C.); R. v. King (1986), 1986 1156 (BC CA), 26 C.C.C. 349
(B.C.C.A.). The circumstances of the present case do not fall
within this category.

[8] Accordingly, the appeal is allowed and the costs order of
the summary conviction appeal court is set aside.

“J.J. Carthy J.A.”
“Louise Charron J.A.”
“Robert J. Sharpe J.A.”