DATE: 2004-11-12

DOCKET: C41070

COURT OF APPEAL FOR ONTARIO

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

BEFORE: WEILER, MOLDAVER and SIMMONS JJ.A.

COUNSEL: Gillian Roberts For the appellant

David 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, overturning the ruling of Justice Jeff Casey of the Ontario Court of Justice dated June 5, 2003.

E N D O R S E M E N T

[1] For the reasons given by Casey J., with which we are in substantial agreement, we would allow the appeal, set aside the order of Ewaschuk J. and affirm the ruling of Casey J. prohibiting the application for costs from continuing. We would augment the reasons of Casey J. with the following brief observations.

[2] The charges against the respondent were withdrawn by the Crown prior to arraignment and plea. Absent abuse or some other flagrant impropriety on the part of the Crown in withdrawing the charges, neither of which was alleged here, the summary conviction judge had no jurisdiction to hold a freestanding hearing on the issue of costs arising from alleged breaches of the respondent’s Charter rights.

[3] Absent a finding of abuse or other flagrant impropriety, it was not for the summary conviction judge or the respondent to determine how the limited resources of the summary conviction court should be used. That was strictly a matter for the Crown. See generally: R. v. Osbourne (1976), 25 C.C.C. (2d) 405 at 411-412 (N.B.C.A.); Kriger v. Law Society of Alberta (2002), 2002 SCC 65, 168 C.C.C. (3d) 97 at para. 32 (S.C.C.); and R. v. T. (V.) (1992), 71 C.C.C. (3d) 32 at 40-41 (S.C.C.).

[4] Additionally, as Casey J. observed, when the question of jurisdiction is tested against the functional and structural approach set out in R. v. 9746497 Ontario Inc. (c.o.b. Dunedin Construction) (2001), 2001 SCC 81, 159 C.C.C. (3d) 321 (S.C.C.) at 335, it is clear that the overriding function of the summary conviction court is to try criminal cases. It is not to fix costs. Once the Crown withdrew the charges, which it could do in the circumstances without leave of the court, the essential function of the court ceased to exist. Retaining jurisdiction thereafter to determine the issue of costs can hardly be described as an ancillary or incidental power needed to permit the court to fulfil its primary role. Absent abuse or some other flagrant impropriety on the part of the Crown in withdrawing the charge, that role ended with the withdrawal of the charges.

[5] Strong policy reasons support these conclusions. The resources of the summary conviction court are extremely limited and the court is already overburdened. If the respondent’s argument were to succeed, it would mean that whenever the Crown chooses to withdraw charges, an accused could, simply by giving advance notice of alleged Charter breaches and a request for costs, tie up the courts for days and weeks on end litigating Charter breaches and costs issues essentially in a vacuum, there no longer being an accused or any outstanding charges before the court.

[6] Limiting the jurisdiction of the summary conviction court in this way does not leave the respondent without a remedy. There is nothing to prevent him from commencing a civil action for his costs, and perhaps other damages, arising from the alleged breaches of his Charter rights. In our view, the civil courts are far better equipped than the summary conviction court to deal with what essentially are civil consequences flowing from a criminal prosecution.

[7] In the end, we would allow the appeal, set aside the order of Ewaschuk J. and affirm the ruling of Casey J. declining to hear the costs application for want of jurisdiction.

“K.M. Weiler J.A.”

“M.J. Moldaver J.A.”

“Janet Simmons J.A.”