COURT OF APPEAL FOR ONTARIO
DATE: 20061020
DOCKET: M33086 (C41521)
RE:
HER MAJESTY THE QUEEN Respondent (Respondent)
- and – JERRY GLEN CHAPMAN (A.K.A. GLENGARRY CHAPMAN) Respondent (Appellant in Appeal)
BEFORE:
MCMURTRY C.J.O.
COUNSEL:
MARA GREENE
for the Moving Party/Intervenor, Criminal Lawyers’ Association of Ontario
MAUREEN MCGUIRE
For the Respondent/Appellant in Appeal, Jerry Glen Chapman
DAVID LEPOFSKY
For the Respondent/ Respondent in Appeal, Her Majesty the Queen
HEARD:
October 20, 2005
E N D O R S E M E N T
[1] This is a motion brought by the Criminal Lawyers’ Association (Ontario) (“the CLA”) seeking to intervene in this appeal as a friend of the court. The Crown opposes the motion.
[2] The appellant brought a pre-trial motion pursuant to Section 278.3 of the Criminal Code to seek production of records held by a third-party. The motion was ultimately dismissed and the third-party sought an order for costs against the appellant. This appeal relates to the order for costs made in favour of the third-party by the trial judge.
[3] The CLA proposes to argue that the authority to order costs against an accused in a criminal proceeding is unsupportable, as a matter of law and policy. I am satisfied that the CLA has the expertise and a sufficient interest in the subject matter of the appeal to permit it to provide a positive contribution to the analysis of the issues. Further, I am satisfied that it will approach the issue from a different and broader perspective than the appellant and will not merely duplicate the appellant's arguments.
[4] Counsel for the Crown advised that the respondent will be conceding that the trial judge applied the wrong test in making the costs award and will be taking no position as to whether the order was otherwise justified. The Crown does not concede, however, that the making of such awards is never appropriate. Counsel’s position was that the record was inadequate for the purpose of resolving this issue and that he will be urging the court to leave consideration of the appropriate test, if any, for making such costs awards to another day. As a result, he submits that the participation of the CLA is unnecessary, as it would unduly broadened the scope of argument in the face of this concession and his position.
[5] The position of the Crown is not unreasonable-the panel hearing the appeal may well wish to confine its decision to the immediate facts and leave consideration of the broader principles to another day when the record is more extensive. However, the panel may not take that view. In that case, I would not wish to deprive it of the benefit of the valuable contribution that the CLA could make on the issue. I will leave it to the discretion of the panel hearing the appeal to determine the scope of the argument.
[6] The Criminal Lawyers’ Association (Ontario) is granted leave to intervene as a friend of the court on the following conditions:
It will take the record as it is and not seek to augment the record;
It will serve and file a factum, not to exceed 15 pages in length, on or before Friday, October 28, 2005;
It will have up to 15 minutes for oral argument, subject to the discretion of the court;
It shall not seek costs nor shall costs be awarded against it.
“R. Roy McMurtry C.J.O.”