DATE: 20040113

DOCKET: C39965

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) – and – RICHARD J. HEERINGA (Respondent)

BEFORE: WEILER, MOLDAVER and ARMSTRONG JJ.A.

COUNSEL:

Benita Wassenaar for the appellant

Timothy E. Breen for the respondent

HEARD & ENDORSED: January 9, 2004

On appeal from the costs order of Justice Kenneth A. Langdon of the Superior Court of Justice dated April 11, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The bail review judge did not find a Charter breach and while the conduct of the Crown and the police may have been sloppy, it did not reach a level that would warrant the imposition of costs against the Crown. The respondent suffered no prejudice whatsoever; the matter was stood down to give him and his counsel disclosure; an adjournment was offered and refused. We note as well that despite comments from the bail review judge and counsel for the respondent that the review hearing was a waste of time because the Crown had failed to provide any “new material evidence”, we would simply point out that there was no requirement on the Crown to adduce new evidence in order to have the release order reviewed.

[2] Accordingly, the appeal is allowed and the costs order is set aside.

“K.M. Weiler J.A.”

“M. J. Moldaver J.A.”

[3] I dissent.

[4] In my view the conduct of the police officer in this case went beyond mere sloppiness. The main purpose, if not the whole purpose, of the bail review was to tender new evidence which was contained in the victim’s statement. The police officer did not bring the statement to court at the time of the bail review. I believe the bail review judge was entitled to make the costs order on the record before him. I would not interfere.

“Robert P. Armstrong J.A.”