DATE: 20020527 DOCKET: M27592/C36317

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) v. JEAN CLEMENT (Respondent)

BEFORE:

CARTHY, DOHERTY and MACPHERSON JJ.A.

COUNSEL:

Thomas Galligan

for the appellant

Michelle Fuerst

for the respondent

HEARD:

April 29, 2002

On appeal from the costs order imposed by Justice B. MacPhee dated April 17, 2001.

E N D O R S E M E N T

[1] [1] The respondent is charged with arson. Prior to trial he brought a motion seeking a stay of proceedings. His counsel argued that the involvement of the insurance company in the criminal investigation and, in particular, in the wiretapping aspect of that investigation amounted to an abuse of process. The respondent and the insurance company were engaged in civil litigation arising out of the fire at the same time as the criminal investigation was ongoing.

[2] [2] The trial judge found that the involvement of the insurance company in the criminal investigation resulted in an abuse of process, but he refused to stay the proceedings. Instead, he ordered that any evidence obtained directly or indirectly from the wiretap would not be admitted at trial. The motion for a stay of proceedings consumed some five weeks.

[1] [3] Following the trial judge’s ruling on the stay application, counsel for the respondent brought a further application seeking costs of the application for the stay of proceedings. The trial judge awarded costs against the Crown, fixed those costs at about $150,000 and ordered the Crown to pay those costs within thirty days.

[2] [4] The Crown seeks leave to appeal and, if leave is granted, appeals the costs order pursuant to s. 676.1 of the Criminal Code. An order was made by a judge of this court staying the costs order pending appeal. The respondent moves to quash the appeal and also seeks to “cross-appeal” from the trial judge’s refusal to grant a stay of proceedings.

[3] [5] The trial has not proceeded and counsel who appeared for the respondent on the stay application has been removed from the record. The five week stay application apparently exhausted the retainer counsel had received from the respondent and counsel was not prepared to proceed to trial absent a proper retainer. According to counsel, the only possible source for a further retainer was the costs order made against the Crown. When the Crown decided to appeal rather than pay the costs forthwith, counsel took the position that he would not remain on the record. He was later removed from the record and the respondent is presently unrepresented at trial.

[4] [6] The respondent’s motion to quash must fail. Section 676.1 permits a party who has been ordered to pay costs to seek leave to appeal from that order. Nothing in the section suggests that the right to seek leave arises only when the trial proceedings are over. On the plain wording of that section, the right arises as soon as the costs order is made. In holding that the Crown was entitled to appeal immediately after the costs order was made, we do not suggest that such appeals will routinely be heard prior to the completion of the trial. To the contrary, the policy reasons which discourage interlocutory appeals will no doubt apply with full force to most appeals launched from costs orders. This is particularly true where the merits of the costs order are intertwined with the merits of an issue that can only be appealed at the end of the trial. Where a costs order is appealed to this court before the end of the trial, it is always open to the court to direct that the appeal should not be heard until the completion of the proceedings in the trial court. In most cases that will be the appropriate order.

[5] [7] The respondent has no right to “cross-appeal” from the trial judge’s refusal to grant a stay of proceedings. Mr. Clement’s rights of appeal are governed by the Criminal Code. The Criminal Code does not grant any right of appeal from a refusal to stay proceedings. The fact that the Crown has a right to seek leave from the costs order does not create a right of appeal in favour of the respondent from the refusal to grant a stay of proceedings.

[6] [8] Although appeals from costs orders should generally not be heard while the trial is ongoing, we are satisfied that in the circumstances of this case the appeal should be addressed at this time.

[7] [9] The trial judge should not have determined the question of costs arising out of the stay application until the conclusion of trial. We reach that conclusion for three reasons. First, the benefit, if any, to the respondent’s defence in the criminal proceedings achieved as a result of the application could best be measured at the completion of the trial. On the motion, the respondent sought only a stay. After a five week hearing, the trial judge refused to grant that relief. He did find an abuse and he did grant the respondent some relief. He excluded any evidence obtained directly or indirectly from the wiretap. The practical value of that remedy to the respondent is, however, in doubt.

[8] [10] Almost a year earlier, the Crown had announced that it would not lead any of the wiretap evidence. In the Crown’s view, that evidence had little or no probative value. At the same time Crown counsel took the position that as far as he was aware none of the evidence it proposed to lead at trial was derivative of the wiretap evidence.

[9] [11] In this court, Mr. Galligan, counsel for the Crown, argued that given the Crown’s position with respect to the wiretap evidence, the respondent gained nothing as a result of his application to stay the proceedings. Ms. Fuerst did not concede that the trial judge’s order did not advance the respondent’s position at trial. She argued that prior to the trial judge’s exclusionary order it was open to the Crown to reassess the probative value of the wiretap evidence and adduce it or, even on the basis of the comments made earlier by the Crown to decide that it would lead derivative evidence. Ms. Fuerst submits that both options were foreclosed by the trial judge’s ruling.

[10] [12] It must be borne in mind that the trial judge was asked to award and fix costs of the stay application. He was not asked to, and could not assess damages for police misconduct. In civil matters, the result of a proceeding is relevant to the question of costs. We see no reason why it should not be relevant where costs are sought in a criminal proceedings. If, as the Crown claims, the appellant gained nothing by the remedy awarded on the stay application, the application was for all practical purposes unsuccessful. The absence of any real gain to the defence would be relevant in deciding whether costs should be awarded.

[11] [13] The trial judge could best decide the benefit to the respondent of the order he granted at the end of the trial. If derivative evidence was tendered by the Crown and was excluded because of the trial judge’s order, then the stay application could be seen as beneficial to the respondent. If, however, there was no suggestion at any point in the trial that the Crown was attempting to lead any evidence covered by the exclusionary order, then the benefit of the application brought at the outset to stay proceedings would be far less apparent.

[12] [14] The second reason for holding that the trial judge should not have determined the question of costs until the end of the trial arises from the jurisprudence concerning the nature of abuse of process applications brought in the context of a criminal trial. As the Supreme Court of Canada and this court have repeatedly said, such applications should not be determined until the end of the trial except in unusual circumstances. The determination of whether conduct reaches the level of an abuse of process, and the further determination of the appropriate remedy in the event that the conduct does reach that level are best assessed in the light of the entire trial record and after a decision on the merits. The trial judge should have followed the course dictated by the case law and reserved until the end of the trial on whether the conduct constituted an abuse and if it did, the appropriate remedy.

[13] [15] Thirdly, the trial judge’s decision to award costs on the stay application prior to the completion of the trial and to direct that those costs be paid within thirty days effectively forced the Crown, if it wished to make any meaningful challenge to that order, to bring an appeal immediately and seek an order staying the trial judge’s order. The Crown cannot be faulted for seeking appellate review of an order which it regarded as wrong in law when that order required payment of some $150,000 out of the public coffers. Nor could the Crown be expected to pay the money and then appeal. The Crown’s chances of recovering any money paid should the appeal be successful would be remote to say the least. Unfortunately, the Crown appeal bifurcated the proceedings against the respondent. The transfer of the issue of costs to this court by way of appeal has contributed to the delay in the trial.

[14] [16] The trial judge should have proceeded with the trial without making any order as to costs on the stay application. Had he done so, it could not be suggested that he was denying the respondent his right to counsel. Counsel was on the record without any qualification. He must have anticipated that he might not succeed on the stay application and that his client might be required to proceed immediately to trial. As a general rule, where a lawyer has agreed to act in a criminal matter and the trial is about to start, counsel is expected to remain on the record whether or not his client is able to pay his fees: Rule 2.09(5) of the Rules of Professional Conduct of the Law Society of Upper Canada.

[15] [17] The appeal is allowed and the costs order is quashed without prejudice to the respondent’s right to renew the application for costs at the end of the trial.

[16] [18] The motion to quash the appeal is dismissed and the “cross-appeal” is quashed as having been brought without jurisdiction.

“J.J. Carthy J.A.”

“Doherty J.A.”

“J.C. MacPherson J.A.”