DATE: 20050302

DOCKET: C42025

COURT OF APPEAL FOR ONTARIO

MCMURTRY C.J.O., DOHERTY and MACFARLAND JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Nadia Thomas for the appellant

Applicant/Appellant

• and -

Steven Bellissimo

MICHAEL GARCIA

for the respondent

Respondent

Heard: February 9, 2005

On appeal from the order of Justice Casey Hill of the Superior Court of Justice dated June 1, 2004, reported at [2004] O.J. No. 2298.

DOHERTY J.A.:

I

[1] The respondent pleaded guilty to impaired “care and control” and received a conditional sentence. The Crown appealed the sentence to the summary conviction appeal court. That court allowed the Crown’s appeal, but subsequently ordered the Crown to pay the respondent’s costs of the appeal, and fixed those costs at $12,000.00. The Crown seeks leave to appeal and if leave is granted, appeals the costs order pursuant to s. 839(1)(a) of the Criminal Code.

[2] I would grant leave to appeal, allow the appeal and set aside the costs order.

II

Overview of the Proceedings

[3] The respondent was charged after he was found passed out in the driver’s seat of his vehicle with the ignition running. Breath samples yielded blood-alcohol readings more than twice the legal limit. He pled guilty to impaired care and control of a motor vehicle.

[4] Prior to the plea, the Crown had served notice on the respondent of its intention to seek a greater penalty because of the respondent’s prior criminal record. He had two prior convictions for drinking and driving offences. Section 255(1)(a)(iii) of the Criminal Code provides that persons convicted of a third or subsequent impaired driving offence are subject to a minimum punishment of 90 days imprisonment. The Crown sought the minimum sentence at the respondent’s trial.

[5] The trial judge, relying on R. v. Middlebrook, [2002] O.J. No. 667, a decision she had given about 11 months earlier, declared that the minimum penalty provisions in s. 255(1)(a)(iii) constituted cruel and unusual punishment, violated s. 12 of the Charter and were of no force or effect. The trial judge imposed a conditional sentence of four months and two weeks. That sentence included a term that required the respondent to continue the treatment and counselling for alcohol abuse that he had commenced prior to his sentencing.

[6] The Crown appealed to the summary conviction appeal court. Crown counsel submitted that s. 255(1)(a)(iii) was constitutional and asked the court to impose the minimum jail term required by that section.

[7] The summary conviction appeal court judge held that s. 255(1)(a)(iii) did not infringe s. 12 of the Charter and was not inoperative: see R. v. Garcia, [2004] O.J. No. 1714. Having concluded that the respondent was subject to the minimum penalty provision, the summary conviction appeal court judge stayed the imposition of that sentence. He did so for three reasons. The respondent had completed his conditional sentence, the passage of time between the guilty plea and the outcome of the summary conviction appeal and “the reality that the respondent’s sentencing became a vehicle for appealing the Middlebrook decision.”

[8] The respondent did not appeal the summary conviction appeal court judge’s finding that s. 255(1)(a)(iii) is constitutional and the Crown did not appeal the decision to stay the sentence imposed on the respondent.

[9] On the costs submissions before the summary conviction appeal court judge, counsel for the respondent sought full indemnification for costs incurred in response to the Crown appeal. After full argument, the trial judge awarded costs on a partial indemnity basis and fixed those costs at $12,000.00. In doing so, he said (at para. 35):

Whatever the contours and meaning to be afforded “test” case litigation, in the peculiar and special circumstances here, the broad discretion to award costs, where it is just and reasonable to do so, properly warrants a governmental contribution by way of partial indemnification of the applicant’s appeal expenses when the resolution of the constitutional validity of the legislation so clearly transcended the offender’s individual case.

III

Analysis

[10] The statutory authority to grant costs in the summary conviction appeal court is found in s. 826 of the Criminal Code:

Where an appeal is heard and determined … the appeal court may make any order with respect to costs that it considers just and reasonable.

[11] This provision gives the summary conviction appeal court judge a broad discretion to award costs. Orders which reflect the exercise of discretion attract considerable deference on appeal. This court will interfere only if satisfied that the exercise of the discretion in the court below reflects an error in principle or has resulted in a miscarriage of justice. Counsel for the Crown accepts that this deferential approach should be applied to costs orders made under s. 826.

[12] It is beyond dispute that the broad discretion described in s. 826 extends to the making of costs orders against the Crown, even if the Crown is successful on the summary conviction appeal: R. v. Ouellette (1980), 1980 9 (SCC), 52 C.C.C. (2d) 336 at 344 (S.C.C.). It is also clear that despite the broad language of s. 826, an award of costs for or against the Crown in summary conviction appeal matters will be the exception and not the rule: R. v. M.(C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327 at 376-77. There are strong policy reasons which dictate that the court should be reluctant to grant costs for or against the Crown in criminal proceedings: see R. v. Robinson (1999), 1999 ABCA 367, 142 C.C.C. (3d) 303 at 315-16 (Alta. C.A.).

[13] The cases in which costs have been awarded against the Crown in summary conviction appeal proceedings fall into two broad categories. The first, and by far the largest, category consists of cases where the conduct of the prosecution is said to merit sanction in the form of an award of costs against the Crown. The second category consists of cases where there is no Crown misconduct, but other exceptional circumstances exist such that fairness requires that the individual litigant not carry the financial burden flowing from his or her involvement in the litigation: R. v. Trask (1987), 1987 24 (SCC), 37 C.C.C. (3d) 92 at 94-95 (S.C.C.); R. v. Gagnon (2000), 2000 8148 (QC CA), 147 C.C.C. (3d) 184 at 190 (Que. C.A.); R. v. Veri, 2000 5642 (ON CA), [2000] O.J. No. 384 (C.A.).

[14] The respondent argued before the summary conviction appeal court that the Crown’s failure to pursue an appeal in the earlier case of R. v. Middlebrook, where the same trial judge had declared the same provision of the Criminal Code unconstitutional, amounted to Crown misconduct. The Crown had informed the summary conviction appeal court judge that an appeal was not pursued in Middlebrook because the police had not served the respondent with the notice of appeal in a timely fashion.

[15] The summary conviction appeal court judge rejected the submission that the decision not to appeal Middlebrook amounted to misconduct. He concluded (at para. 22):

There is no improper Crown conduct in the prosecution of the Middlebrook and Garcia cases.

[16] On appeal, the respondent accepts this finding and does not contend that the costs order can be justified on the basis of Crown misconduct.

[17] The summary conviction appeal court judge went on to identify two factors which in his assessment brought this case within the exceptional circumstances class of cases. The summary conviction appeal court judge described the appeal as akin to a test case in that the Crown appeal raised a controversial and important legal issue transcending the particular circumstances of the individual respondent. He described the appeal as brought by the Crown in the public interest to resolve a legal issue that had arisen in several cases and would continue to arise at the trial stage in other prosecutions until resolved on appeal.

[18] In addition to the public interest nature of the appeal, the summary conviction appeal court judge also relied on the Crown’s failure to pursue the appeal in R. v. Middlebrook. As I understand this part of his analysis, he reasoned that had the Crown pursued its appeal in Middlebrook, the constitutionality of s. 255(1)(a)(iii) would have been resolved in the Crown’s favour before the respondent came to trial, the trial judge would not have followed Middlebrook, but would have imposed the minimum penalty, and no appeal would have been necessary in this case. The summary conviction appeal court judge said (at para. 34):

[I]f, in the ordinary course, the Middlebrook case had been appealed that appeal would have been disposed of prior to Mr. Garcia’s trial. Because the case was not appealed, Mr. Garcia’s trial disposition became the vehicle to overturn the adverse constitutional decision. In effect, Mr. Garcia inherited the role of defending the s. 12 Charter ruling while Middlebrook went on his way and as many as a dozen and a half other litigants waited and watched.

[19] Neither of the two factors identified by the court provides any justification for the costs order.

[20] In relying on the public interest nature of the appeal, the summary conviction appeal court judge mischaracterized the appeal as akin to a test case. While the appeal doubtless raised an important legal issue of general application to cases where the Crown relied on s. 255(1)(a)(iii), it also raised a very real issue as between the Crown and the respondent. The Crown sought an order imprisoning the respondent for the minimum 90 day period required by s. 255(1)(a)(iii). The respondent had a vital interest in opposing the appeal. His liberty was at stake. Indeed, the respondent was successful in that he ultimately obtained an order on appeal that enabled him to avoid the minimum jail term imposed by Parliament.

[21] This was not an appeal where the issue as between the Crown and the respondent was moot: see R. v. Girard, [2000] B.C.J. No. 1518 (S.C.); R. v. A.J.O., 2004 66304 (ON SC), [2004] O.J. No. 1221 (S.C.J.). Nor can this appeal be described as one in which the Crown had little or no interest in the disposition of the specific appeal, but a vital interest in the resolution of the legal issue raised on the appeal. The Crown had a real interest in both the outcome of the appeal and the resolution of the legal issue.

[22] I agree with Crown counsel’s submission that the mere fact that a Crown appeal raises a legal issue of general importance whose resolution will affect other cases cannot suffice to make the appeal an “exceptional” case warranting a costs order against the Crown. Were that the law, costs orders would be commonplace, certainly in this court and the Supreme Court of Canada where most Crown appeals in summary conviction matters raise legal issues that potentially impact on many other cases.

[23] The summary conviction appeal court judge referred to R. v. Trask, supra, to support his costs order. I think that case supports the Crown’s contention that a costs order is not appropriate merely because an appeal raises a legal issue that has importance beyond the specific case in which the issue is raised. In Trask, the appellant questioned the meaning of the word “detention” in s. 10(b) of the Charter. The outcome in Trask and related cases resolved countless other cases in which the same issue had been raised. In considering the appellant’s request for costs against the Crown, McIntyre J. at p. 95 acknowledged that the court could award costs where:

[I]t is the public-at-large who are the beneficiaries of such a step [the appeal] and it is not considered just that one individual should be put to substantial expense when it is the Crown that seeks to effect a valid social purpose by taking the appeal.

[24] McIntyre J., however, rejected the submission that Trask was public interest litigation in the sense that he understood the term. The appellant in Trask had a practical and vital personal interest in the outcome of the appeal. If he was successful on the appeal, he would avoid conviction on the drinking and driving charge. McIntyre J. concluded that it was not unfair to require the appellant in Trask to pay his own legal costs.

[25] The respondent in this case is in no different a position than the appellant in Trask. Both found themselves participating in appeals that determined important legal points, but which also had a very real personal significance to them.

[26] In deciding whether the public interest at stake in an appeal justifies a costs order against the Crown under s. 826, the summary conviction appeal court must consider both the public importance of the legal issue raised on the appeal and the significance of the outcome of the appeal to the individual respondent. Where the public interest is high and the appeal has little or no significance to the particular respondent, a costs order against the Crown may be appropriate regardless of the outcome of the appeal. Where, however, there is a significant public interest in the legal issue raised on the appeal and the respondent has a significant personal interest, it is not unfair to follow the general rule and require each side to bear its own costs.

[27] The summary conviction appeal court judge failed to consider the significance of the appeal to the respondent. He was not a nominal respondent brought to court so that the Crown could settle a question of law for the general public good. The respondent had a vital stake in the outcome of this appeal. This was not a test case or anything akin to a test case.

[28] The trial judge’s reliance on the Crown’s decision not to pursue an appeal in the Middlebrook case also provides no basis for a costs order. Having found that the Crown’s failure to pursue that appeal was not any form of misconduct, the summary conviction appeal court judge then effectively treated the failure to pursue the appeal as a “governmental error” meriting a costs award against the Crown.

[29] There are many reasons why the Crown may not pursue an appeal in the first case in which an important legal issue is raised. Once the court accepts that the decision not to appeal was bona fide, as the summary conviction appeal court judge did, the Crown’s reasons for not pursuing the appeal in the earlier case are irrelevant to determining whether costs should be awarded in the subsequent case where the legal issue is resolved. It is not the court’s function to second guess the Crown’s decision that an appeal should not be pursued, or to speculate what might have happened had the Crown sought to pursue the appeal.

[30] It is not uncommon in criminal litigation that the same legal issue arises in several prosecutions at about the same time. The prosecution in which the issue eventually reaches the appeal stage will depend on a variety of circumstances, some of which are purely a matter of chance. The mere fact that the legal issue could have been raised earlier in a different proceeding had events unfolded in a different way can have no bearing on the question of whether costs should be awarded against the Crown in the case in which the issue is in fact eventually resolved on appeal. In so holding, I of course assume no improper conduct by the Crown.

[31] There was nothing exceptional about this appeal. The Crown contended that the trial judge had erred in declaring s. 255(1)(a)(iii) unconstitutional and that this error had resulted in a sentence that was both illegal and unfit. The respondent resisted the appeal not merely to preserve the trial judge’s constitutional ruling, but to avoid incarceration. The parties had divided success on appeal. The Crown won the constitutional point and the respondent stayed out of jail. There should have been no order as to costs.

IV

[32] I would grant leave to appeal, allow the appeal and set aside the order requiring the Crown to pay the respondent’s costs fixed in the amount of $12,000.00.

[33] There should be no costs in this court.

RELEASED: “MAR 02 2005” “RRM”

“Doherty J.A.”

“I agree R.R. McMurtry C.J.O.”

“I agree MacFarland J.A.”