Court of Appeal for Ontario

Citation: R. v. Fercan Developments Inc., 2016 ONCA 440 Date: 2016-06-02 Docket: C59112

Judges: Laskin, LaForme and Pardu JJ.A.

Between:

Her Majesty the Queen Appellant

and

Fercan Developments Inc., GRVN Group Inc. and FirstOntario Credit Union Limited Respondents

Counsel: Croft Michaelson, Q.C., and Kevin Wilson, for the appellant, Her Majesty the Queen Brian Greenspan and Naomi Lutes, for the respondent, Fercan Developments Inc. William Friedman and Patrick Bakos, for the respondent, GRVN Group Inc. Robert Malen and Robert Drake, for the respondent, FirstOntario Credit Union Ltd. Louis P. Strezos, for the intervener, the Criminal Lawyers’ Association

Heard: November 30, 2015

On appeal from the cost awards of Justice Peter C. West of the Ontario Court of Justice, dated January 21, 2015, with reasons reported at 2014 ONCJ 779 and at 2015 ONCJ 695.

Costs Endorsement

[1] The Crown’s appeal from costs ordered against it in forfeiture proceedings under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, was dismissed by this court on April 14, 2016: R. v. Fercan Developments Inc., 2016 ONCA 269. As the respondents had requested that we award costs on the appeal, we invited the parties to provide written submissions on their entitlement to costs and the quantum of any costs that may be awarded.

[2] The parties’ submissions have now been received and reviewed. We have concluded that we should not award any costs on this appeal.

[3] In general, courts do not award costs against the Crown in criminal proceedings. As noted by this court, at para. 37 of the appeal decision, absent a Charter infringement, costs will be awarded against the Crown only if there is either serious Crown misconduct or if there are exceptional circumstances.

[4] The respondents’ request for costs of the appeal does not satisfy any of those prerequisites.

[5] First, the Crown’s did not display a marked and unacceptable departure during this appeal. While this court did find serious Crown misconduct in the forfeiture proceedings, there is no reason why that should infect the Crown’s conduct on appeal. There was merit to the Crown’s appeal and it raised questions of significant importance and, therefore, the decision to appeal does not display a marked and unacceptable departure. The respondents have not alleged that the Crown’s conduct in this court displayed a marked and unacceptable departure.

[6] Second, although it is clear that the respondents have incurred substantial costs because of the forfeiture proceedings, there is no evidence that the costs were exceptional or result in unfairness. Moreover, the significant costs upheld by this court should ameliorate any financial hardship.

[7] In any event, it appears that s. 683 of the Criminal Code, R.S.C. 1985, c. C-46, precludes a costs award on this appeal. At the very least, due to s. 683, the civil cost provisions that the respondents rely on cannot be implied through the Criminal Appeal Rules, SI/93-169.

[8] Accordingly, there will be no costs ordered for this appeal.

“John Laskin J.A.” “H.S. LaForme J.A.” “G. Pardu J.A.”