Court of Appeal for Ontario

CITATION: R. v. Marsden, 2007 ONCA 765

DATE: 20071108

DOCKET: C46522

MOLDAVER, SHARPE and BLAIR JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Applicant/Appellant

and

JOHN MARSDEN

Respondent

Counsel:

Croft Michaelson and Xenia Proestos for the appellant

Izaak De Rijcke for the respondent

Heard and endorsed: November 7, 2007

On appeal from the costs order of Justice Norman Douglas of the Ontario Court of Justice dated January 2, 2007.

APPEAL BOOK ENDORSEMENT

[1] The respondent did not move for Charter relief in the course of his trial in the Ontario Court of Justice on charges of tax evasion and making false or deceptive statements. Instead, he waited until he was acquitted to bring a free-standing Charter application for costs, pursuant to s. 24(1) of the Charter, on the basis of alleged ss. 7 and 8 Charter breaches.

[2] Over the objections of the Crown, the trial judge (a) entertained the application; and (b) denied the Crown an opportunity to lead evidence in response to the alleged Charter breaches. On the merits, he found ss. 7 and 8 breaches and awarded costs against the Crown as a remedy.

[3] In our view, in the absence of a motion for Charter relief prior to the verdict of acquittal, the trial judge had no jurisdiction to entertain the application thereafter. (See R. v. Fach (2004), 191 C.C.C. (3d) 225 (Ont. C.A.) and R. v. Simpson (1998), 1998 NSCA 184, 133 C.C.C. (3d) 103 (N.S.C.A.).

[4] In any event, jurisdiction aside, the trial judge erred in failing to give the Crown an opportunity to call evidence in response to the alleged Charter breaches.

[5] Accordingly, leave to appeal is granted, the appeal is allowed and the costs order is quashed, without prejudice to the respondent to pursue any claims he might have in the civil courts.