DATE: 20041112

DOCKET: C41069

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) – and – CHRISTOPHER MORTON (Respondent)

BEFORE: WEILER, MOLDAVER and SIMMONS JJ.A.

COUNSEL: Gillian Roberts For the appellant

David M. Midanik For the respondent

HEARD: November 3, 2004

On appeal from the order of Justice Eugene G. Ewaschuk of the Superior Court of Justice dated November 14, 2003 upholding the ruling of Justice P. Reinhardt of the Ontario Court of Justice dated March 18, 2003.

E N D O R S E M E N T

[1] For the reasons given in the companion appeal of R. v. Fach (C41070), we would allow the appeal, set aside the order of Ewaschuk J., quash the decision of Reinhardt J., and prohibit him or any other judge of the summary conviction court from proceeding with the application for costs.

[2] In this case, while the respondent alleged abuse on the part of the Crown in the procedure it adopted to effect the withdrawal of the charges, Reinhardt J. quite properly refused to give effect to that argument. To the extent that the respondent submits that other allegations of abuse on the part of the Crown in withdrawing the charges were implicit in his submissions, we reject that argument. On this record, we see no basis in fact or law upon which a finding of abuse could be made against the Crown in relation to the withdrawal of the charges.

"K.M. Weiler J.A."

"M. J. Moldaver J.A."

"Janet Simmons J.A."