COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Martin, 2016 ONCA 840
DATE: 20161108
DOCKET: C59909
Weiler, Simmons and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Chad Everett Martin, Rhonda Lynn Asbreuk and Williamsberg Financial Centre Inc.
Respondents
Xenia Proestos, for the appellant
Mark Halfyard and Breana P. Vandebeek, for the respondents
Heard: April 26, 2016 and September 21, 2016
On appeal from the ruling of Justice Robert D. Reilly of the Superior Court of Justice, dated November 28, 2014, upholding, on certiorari, the ruling of Justice Colin R. Westman of the Ontario Court of Justice, dated October 24, 2014.
Weiler J.A.:
A. Overview
[1] This appeal raises a narrow jurisdictional issue. Does the Summary Conviction Court judge have jurisdiction to conduct an inquiry into whether costs should be awarded to the respondents as a remedy for alleged violations of their rights under the Canadian Charter of Rights and Freedoms after a stay of proceedings by the Crown pursuant to s. 579 of the Criminal Code?
[2] For the reasons that follow, I would hold that the Summary Conviction Court judge did not have jurisdiction.
B. HIstory of the Proceedings
[3] The respondents were charged with offences under s. 239(1) of the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.). A person guilty of an offence under this provision is liable on summary conviction to pay a fine, or is subject to a fine and imprisonment for a term not exceeding two years. At the election of the Attorney General of Canada, the matter may proceed by way of indictment and, in that case, an accused is subject to greater penalties.
[4] The Attorney General proceeded summarily and the trial commenced on January 20, 2014. Evidence was heard from May 21 to May 29, 2014, at which time the key Crown witness, who was being cross-examined, exhibited signs of extreme emotional strain, was taken to hospital and was granted a medical leave. The Crown took four days to reconsider its position and then decided to exercise its power under s. 579 of the Criminal Code[^1] to direct an officer of the court to stay the proceedings that had been brought against the respondents.
[5] Before directing the stay on June 3, 2014, the Crown advised the respondents’ defence counsel of its intention. Defence counsel replied that the respondents would seek costs against the Crown pursuant to s. 24(1) of the Charter for alleged violations of their rights.
[6] After the proceedings were stayed, the respondents advised the Summary Conviction Court judge of their application for costs. Then, on June 5, 2014, the respondents filed a Notice of Application for an order of costs against the Crown and the Canada Revenue Agency. The application sought costs as a remedy for “various acts of prosecutorial and investigation negligence, abuses of the criminal process and violation of the Applicant’s rights as protected by s. 8 of the Canadian Charter of Rights and Freedoms.”
[7] The Crown submitted that, as soon as the stay was entered, the court lost jurisdiction to grant the costs sought.
[8] The Summary Conviction Court judge held that “the informal understanding between the Crown and the defence was sufficient to preserve this court’s right to deal with the issue of costs.”
[9] The Crown applied for certiorari thereby seeking to have the Summary Conviction Court judge’s decision that he had the right to consider the respondents’ request for costs, reviewed on the basis he had exceeded his jurisdiction.
[10] The Superior Court judge held that, prior to the stay, there was a request for relief in accordance with s. 24(1) of the Charter before the Summary Conviction Court and that, while the circumstances in which the defence would be entitled to costs may be limited, the application was not completely barred by the stay. Accordingly, the Superior Court judge refused to quash the decision at first instance for want of jurisdiction.
[11] On the appeal to this court, the Crown’s position is that the decision in R. v. Fach, [2004] O.J. No. 4637 (C.A.) is dispositive of the jurisdictional issue. In Fach, the Crown withdrew charges against the respondents prior to arraignment and plea. This court held at para. 2:
Absent abuse or some other flagrant impropriety on the part of the Crown in withdrawing the charges, neither of which was alleged here, the summary conviction judge had no jurisdiction to hold a freestanding hearing on the issue of costs arising from alleged breaches of the respondent’s Charter rights.
[12] Shortly before the appeal before us commenced on April 26, 2016, this court released its decision in R. v. Fercan Developments Inc., 2016 ONCA 269, 28 C.R. (7th) 148. In Fercan, this court held that a provincial court judge hearing a forfeiture application under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) has the implied power to control its own process and therefore, the jurisdiction to award costs when there has been a marked and unacceptable departure from the reasonable standards expected of the prosecution.
[13] Before us, the respondents advanced the argument that we should apply Fercan, and that the ratio in Fach is not binding on this court. The hearing was adjourned to allow a request for the appeal to be heard by a five-member panel. That request was denied. The appeal continued on September 21, 2016. In addition to supplementary facta on whether Fercan displaced the principles outlined by this court in Fach, the court received further oral submissions.
C. Discussion
[14] Before deciding the overarching issue of whether a Summary Conviction Court judge has jurisdiction to make an award of costs once a stay has been entered under s. 579 of the Criminal Code, I must discuss the holdings in Fach and Fercan.
(1) Is Fach dispositive of this appeal?
[15] The Crown submits that, like all decisions of the Court of Appeal, Fach is binding on us and we must apply it in this case.
[16] The respondents acknowledge that Fach is a binding decision but, submits that, because it is an endorsement, it has limited precedential value and is not decisive of the issue before us. In addition, the respondents rely on the factual differences between the two cases.
[17] I agree that the factual context of Fach differs from the case before us. There, the accused was never arraigned and no plea was taken before the charges were withdrawn. Unlike this case, the judge in Fach never became the “trial judge” and, as such, never gained jurisdiction to hear a free-standing costs application.
[18] I also agree that reasons given by way of endorsement are mainly directed at giving the immediate parties an understanding of why the court disposed of the appeal as it did. Jurisprudential principles intended to be articulated for the first time take the form of written judgments. Care must be taken not to construe an endorsement as supporting broad principles that were not specifically addressed: see R. v. Singh, 2014 ONCA 293, 120 O.R. (3d) 76, at para. 12; R. v. Timminco Ltd., (2001), 2001 CanLII 3494 (ON CA), 54 O.R. (3d) 21, 42 C.R. (5th) 279 (C.A.), at paras. 35-36.
[19] That said, the weight to be given to an endorsement will vary widely. Sometimes the general principles of law have already been established by full written reasons in prior cases and it is only necessary for the Court to apply those principles to the case before it. Sometimes the jurisprudential heavy lifting in the particular case has been done by the court at first instance and there is little, if anything, for the appellate court to add apart from its agreement with that reasoning.
[20] The endorsement in Fach expressed its substantial agreement with the reasoning of the judge at first instance who observed that:
when the question of jurisdiction is tested against the functional and structural approach set out in R. v. 9746497 Ontario Inc.(c.o.b. Dunedin Construction) (2001), 2001 SCC 81, 159 C.C.C.(3d) 321 (S.C.C.) at 355, it is clear that the overriding function of the summary conviction courts is to try criminal cases. It is not to fix costs.
The endorsement also cited appellate and Supreme Court of Canada jurisprudence for the general principle that absent a finding of abuse or other flagrant impropriety, it is not for the Summary Conviction Court judge or the accused to determine how the limited resources of the Summary Conviction Court should be used. Thus, the weight to be accorded to Fach must take into consideration the reasons it endorsed and the jurisprudence on which it relied.
[21] I must also take into consideration, however, that the argument made in Fercan, namely, that the provincial court has implied jurisdiction to award costs based on the court’s ability to control its own process, was not raised at trial or on appeal in Fach.
[22] Because the factual context is different and because the argument now made is different, Fach is not clearly dispositive of the appeal before us.
(2) Does Fercan apply to this case?
[23] Before considering whether Fercan applies to this appeal, it is necessary to lay out the factual background and the considerations that animated the decision.
[24] Fercan Developments Inc. was the subject of a forfeiture application under s. 16 of the CDSA after a marijuana grow operation was found on a portion of its 35 acre property. FirstOntario Credit Union held a three million dollar mortgage on the Fercan property as security for a loan.
[25] Robert DeRosa was the property manager for Fercan. He used his position to ensure that the grow operation remained hidden but, eventually, it was discovered and he was charged and convicted of offences under the CDSA. Robert’s brother, Vincent, was the sole director, officer and shareholder of Fercan. Robert lived on property owned by GRVN Group Inc. (“GRVN”). Police discovered evidence of a recently dismantled grow operation on the GRVN property as well as drugs linked to the Fercan property. Another brother, Nicola, was the sole director, officer and shareholder of GRVN. Nicola, GRVN, Vincent and Fercan were never charged with any offence.
[26] The Crown obtained an ex parte restraint order on the property owned by Fercan, including FirstOntario’s interest, as well as on the property owned by GRVN in the Superior Court. The Crown successfully resisted an application by Fercan and FirstOntario to vary the restraint order to permit sale of the Fercan property, repayment of FirstOntario’s mortgage, and the deposit of the balance of the money in court. It then brought forfeiture proceedings against Fercan, FirstOntario and GRVN. Section 19(3) of the CDSA permits a judge to return offence-related property to any person who is lawfully entitled to it and who appears innocent of any complicity or collusion in respect of the underlying designated substance offence. Prior to the commencement of the hearing, the application judge ruled that on a s. 19(3) application, the onus remained on the Crown throughout the proceedings and it had the burden of showing that the respondents did not appear innocent of any complicity or collusion: R. v. Fercan Developments Inc., [2013] O.J. No. 748 (C.J.). The Crown did not appeal this decision.
[27] On the 31st day of the forfeiture hearing, the Crown suddenly abandoned its application for forfeiture against FirstOntario. The hearing was maintained in relation to the application against Fercan and GRVN. The application judge concluded that, although these were offence-related properties, the evidence overwhelmingly led to the conclusion there was no evidence of complicity or collusion by them or their owners with Robert or those convicted in relation to the grow operation. The Crown did not appeal this decision.
[28] FirstOntario then sought costs against the Crown before the provincial court judge who had heard the forfeiture application. So did Fercan and GRVN. The application judge held that the Crown’s forfeiture application was without merit from the start. Any evidence the Crown had connecting Fercan and GRVN to the grow operations was extremely speculative and ignored the body of evidence rebutting any inference advanced by the Crown against these innocent third party by-standers. The decision to commence forfeiture proceedings demonstrated an intransigent, “hardball” attitude, which continued throughout the hearing, such as refusing to provide disclosure of the evidence relating to the grow operations even though such disclosure would have been provided to an accused person. In relation to FirstOntario, the Crown had initially not contested its security interest, said it would advise of any change of position, did not do so, then, even after obtaining documentary disclosure of the validity of FirstOntario’s interest, aggressively resisted its application to vary the restraint order, and conducted forfeiture proceedings against it. The Crown’s explanation for suddenly abandoning the proceedings against FirstOntario was not satisfactory. Overall, the conduct of the Crown towards FirstOntario amounted to a marked and unacceptable departure from the reasonable standards expected of the prosecution or Crown, misconduct meriting an award of costs against the Crown on a substantial indemnity scale. The application judge also concluded that the Crown’s conduct in relation to Fercan and GRVN met the standard for an award of costs against the Crown.
[29] The Crown appealed. One of the arguments made on appeal was that the provincial court judge lacked jurisdiction to make an award of costs under the CDSA and that the applicants should initiate an action in the Ontario Superior Court for damages instead. This court rejected that argument. Writing on behalf of the Court, LaForme J.A. rested his decision on three linked pillars or reasons. The first is that even though a statutory court does not have any inherent jurisdiction, the court has an implied power to control its own process and, as part of that power, a provincial court judge can award costs. The second is that the breadth of the provincial court’s mandate under the CDSA suggests that it has an implied power to award costs. Both the Superior Court of Justice and the Ontario Court of Justice have jurisdiction to hear forfeiture applications under the CDSA. “Court” is not defined in the CDSA. Justice LaForme held that, having regard to the wording of the forfeiture provisions, Parliament intended that the power of the provincial court judge and the Superior Court judge in relation to forfeiture applications be equal. Third, having regard to the statutory context, the implied power to award costs was reasonably necessary for the court to discharge its mandate in a fair and efficient manner. At para. 55, LaForme J.A. stated:
[I]n light of the Superior Court’s power to award costs, depriving the Ontario Court of Justice of that power is undesirable. Without this power a contest would likely arise as to which court the application for forfeiture should be brought in, depending on whether the costs issue was deemed relevant by the Crown. A contest like this would frustrate the scheme of the forfeiture provisions and could not have been intended by Parliament.
[30] The Crown submits that Fercan is limited to the CDSA forfeiture regime. In support of its position, the Crown points out that in Fercan, the court held that a CDSA forfeiture proceeding is different from routine criminal cases: Fercan, at para. 79. A CDSA forfeiture proceeding is a stand-alone hearing and is neither a trial nor part of sentencing. Second, the parties in Fercan were innocent third party by-standers. An accused who is charged but not convicted is not entitled to the same treatment by the courts: Fercan, at para. 80. Further, the Crown notes that Fercan does not mention Fach, a reflection of the factually distinct context in Fercan, and an indication that Fercan was not meant to overrule Fach. Finally, the Crown also submits that the respondents are not without a remedy, they can bring a separate proceeding in the Superior Court for costs.
[31] The respondents submit that the implied power of a provincial court judge to control its own process is not limited to the forfeiture regime under the CDSA. They argue that there is no reason to limit Fercan. The respondents’ submission is that simply by creating a hybrid offence, Parliament’s implied intention is that both the Summary Conviction Court and the Superior Court have the same jurisdiction to award costs and the Summary Conviction Court must entertain the respondents’ application.
[32] The respondents further point out that in Fercan, LaForme J.A., rejected the argument now advanced by the Crown that the respondents are not left without a remedy because they can bring a separate proceeding in the Superior Court. Relying on the Supreme Court of Canada’s decision in R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 79, LaForme J.A. observed, at para. 57 of his reasons, that bifurcating proceedings is undesirable and should be avoided in all but exceptional cases. He also relied on the decision of McLachlin C.J.C. in Dunedin to the effect that bifurcation would negatively impact the effective and efficient functioning of the courts and could render a remedy illusory in practice. The respondents submit that two policy reasons, fairness and judicial efficiency, militate in favour of the Summary Conviction Court judge’s having the power to award costs.
[33] A fair reading of Fercan leads me to conclude that it is also not determinative of this appeal. While recognizing, generally, that a statutory court’s ability to control its own process can extend to awarding costs, LaForme J.A. reiterates throughout the judgment that the particular proceeding, a CDSA forfeiture hearing, provides the foundation for much of his analysis and conclusions. As will be discussed below, the context in which the issue arises in this case, a cost application brought after a Crown-directed stay of proceedings, gives rise to wholly different considerations than those at play in Fercan.
(3) Did the judges below err in holding that the Summary Conviction Court had jurisdiction to conduct an inquiry into costs notwithstanding the stay of proceedings under s. 579 of the Criminal Code?
[34] It is apparent from the reasons of the Summary Conviction Court judge on the respondents’ costs application, that he accepted the respondents’ comment to the Crown that they would bring an application for costs, as an informal application for Charter relief under s. 24(1) made prior to the entry of the stay. On the certiorari application, the Superior Court upheld the Summary Conviction Court judge’s decision on the basis that where an application for Charter relief is before the court, a Summary Conviction Court retains jurisdiction to address the issue of costs. The Superior Court judge, citing Fach, stated:
[I]t is conceded by counsel that Westman J. accepted that there was an application pursuant to s. 24(1) of the Charter before him. If that be so, then he retained jurisdiction to consider the issue of costs, perhaps if only in circumstances of “abuse or some other flagrant impropriety on the part of the Crown in withdrawing the charges”.
[35] There is no question that statutory courts have jurisdiction to hear applications for Charter relief, and grant costs as part of a remedy under s. 24(1): R. v. Tiffin, 2008 ONCA 306, 90 O.R. (3d) 575; Dunedin, at para. 97. But this implied power is not without parameters. Specifically, the implied power is linked to the court’s control of its trial process: Dunedin, at para. 81.
[36] Applying Dunedin, I conclude that the Summary Conviction Court judge has no jurisdiction to hear the costs application in this case for several reasons. First, the court’s process is not invoked when the Crown exercises its prerogative to enter a stay pursuant to s. 579 of the Criminal Code. Second, neither the Superior Court of Justice nor the Summary Conviction Court has jurisdiction to entertain an application for an alleged breach of a Charter right once a stay is entered pursuant to s. 579. Third, a principled approach to the question of jurisdiction of statutory courts to award costs, as set out in Dunedin, does not support a conclusion that the Summary Conviction Court judge in this matter retained jurisdiction to hear the costs application after the Crown-directed stay.
[37] To the first point, an important distinction between Fercan and this case arises from the power invoked by the Crown under s. 579 of the Criminal Code. Section 579(1) states that:
The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction… [Emphasis added.]
[38] It is the Attorney General or his agent who is in control. The entry of a stay is an administrative act beyond the direction or control of the trial judge: R. v. Jones (1996), 1996 CanLII 12421 (ON CA), 5 C.R. (5th) 364 (C.A.); Balderstone v. R. (1983), 1983 CanLII 2803 (MB CA), 23 Man. R. (2d) 125 (C.A.). Once the Crown has exercised its right under s. 579 to direct a stay of proceedings, the judge, whether a Summary Conviction Court judge or a Superior Court judge, is functus: R. v. Smith, (1992), 1992 CanLII 325 (BC CA), 79 C.C.C. (3d) 70 (B.C.C.A.), leave to appeal to S.C.C. dismissed for delay, [1993] S.C.C.A. No. 7.
[39] Clearly, in a situation where a trial judge comes to a final disposition in a matter, including entering a judicial stay of proceedings, he or she retains jurisdiction to craft an appropriate remedy for a Charter violation, including awarding costs, where appropriate. That is because a remedy under s. 24(1) of the Charter, in those circumstances, is part of the trial judge’s discretionary adjudicative process. In Fercan, for example, the application judge concluded that the Crown’s forfeiture application was meritless and that the Crown’s overall conduct rose to the level of a marked and unacceptable departure from the standard expected of the Crown. Costs were awarded on the basis of the application judge’s findings, and an interpretation of the function and purpose of the forfeiture provisions in the CDSA.
[40] The same cannot be said in circumstances where the Crown exercises its discretion to direct a stay of proceedings, a decision which, in no way, requires any findings of fact or adjudication of issues, and over which the trial judge has no power to interfere.
[41] Thus, an important part of the foundation for the court’s conclusion in Fercan, the implied power of the court to control its own process, is lacking in this case, given the nature of the power granted to the Crown under s. 579 of the Criminal Code.
[42] Second, neither the Superior Court nor the Summary Conviction Court has jurisdiction to entertain an application alleging a violation of the respondents’ Charter rights once a stay has been entered under s. 579 of the Criminal Code. See Smith, at p. 80:
Without a Charter consideration, it is clear that once the Crown exercises its s. 579 right to direct a stay be entered, the judge hearing the prosecution is functus and without jurisdiction to proceed further. Does the Charter change that? With respect, I think not.
[43] The following passage from Smith, also at p. 80, was quoted with approval by Doherty J.A. in R. v. Larosa (2002), 2002 CanLII 45027 (ON CA), 166 C.C.C. (3d) 449 (C.A.), at para. 41 of his reasons:
When the stay has been entered there is no contest between the individual and the state. The prosecution has come to an end. The position of the accused as against the state is the same as if he had never been charged. The individual is not put at jeopardy by the stay. On the contrary, the jeopardy he faced as an accused in an ongoing prosecution has come to an end. It may be that if in this case a new indictment is preferred, an argument could be made that the action of the Crown in staying and preferring a new indictment, gives rise to Charter violations. However, at the moment a stay is entered, and assuming the matter stops there, I can see no possible violation of the accused’s Charter rights.
[44] In Larosa, the appellants alleged the conduct of the Crown during the criminal proceedings, and then in staying the criminal proceedings, amounted to an abuse of process, particularly as it related to Pagano, an accused for whom extradition to the United States was made possible by the Crown’s stay of criminal proceedings in Canada. The appellants sought to have the stay reviewed and set aside. Doherty J.A. rejected their submissions at paras. 42-43 of his reasons and held that even if these claims had merit, they would provide no basis for interfering with the Crown’s decision to enter a stay and would only be germane if criminal proceedings were reinstituted.
[45] In this case, the respondents do not complain that the Crown’s entry of a stay was improper. At most, the respondents allege negligence on the part of the Crown.[^2] As this court noted in R. v. Singh, 2016 ONCA 108, 28 C.R. (7th) 124 (“Singh, 2016”), at paras. 33-34, the concept of “marked and substantial departure” indicates a deviation from a norm that goes beyond negligence. I agree with the Superior Court’s comments on the certiorari application that it is “highly debatable” whether a costs remedy would be appropriate in this case, and more importantly, that the application should only be entertained in circumstances of “abuse or some other flagrant impropriety on the part of the Crown in withdrawing charges.” It was the respondents’ prerogative to not challenge the Crown’s decision to stay the proceedings. Indeed, the decision meant that the respondents no longer faced the jeopardy of being convicted, nor would they need to expend any further resources in defending themselves. In the absence of an argument that the Crown acted improperly by directing a stay, there was no basis for the Summary Conviction Court judge in this case to conclude that he had jurisdiction to hear a costs application. Nothing in the jurisprudence suggests that, in circumstances such as the present, the power of the Attorney General to stay proceedings is circumscribed by the courts’ implied power to control its own process. The stay pursuant to s. 579 brought proceedings to an end.
[46] Neither the Superior Court nor the Summary Conviction Court would have had jurisdiction to entertain an application for costs once the stay was entered. Thus, the argument that the Summary Conviction Court should have jurisdiction to award costs because the Superior Court has jurisdiction to do so, another key element of LaForme J.A.’s reasoning in Fercan, does not assist the respondents.
[47] Finally, while Dunedin supports a flexible and functional approach to determining the power of statutory courts to award Charter remedies, nothing in the jurisprudence suggests that the test for determining jurisdiction set out in Dunedin has been abandoned in favour of an ad hoc approach to determining jurisdiction based on a party’s request to litigate costs or obtain particular relief. The notice the respondents provided in this case, whether proper notice or not, does not determine the court’s jurisdiction to hear the application after the stay was entered. Nor is the question of jurisdiction discretionary based on the applicant’s financial position, or a judge’s personal view of what is fair.
[48] Rather, Dunedin recognized that there will be circumstances where costs awards are “integrally connected” to the function of the statutory court and the court’s ability to control its trial process by disciplining conduct on the part of the prosecution which is not simple negligence but which falls far below the standard expected of those representing the public’s interest and results in the court’s process being usurped.
[49] I would reiterate this court’s comments in Singh, 2016 and R. v. Ciarniello (2006), 2006 CanLII 29633 (ON CA), 81 O.R. (3d) 561, 41 C.R. (6th) 310 (C.A.), leave to appeal to the S.C.C. refused, [2006] S.C.C.A. No. 424, that there continues to be a fundamental difference in the purpose for awarding costs in the civil context versus the criminal one. Unlike with civil proceedings, indemnity and compensation are not the focus of costs awards in the criminal context. As noted in Singh, 2016, at para. 52, quoting Ciarniello, at para. 33, the Crown is not an ordinary litigant, in that the Crown prosecutes and makes decisions respecting prosecutions based on the public interest. For that reason:
Costs are not usually deployed in criminal law to influence the litigation….As the Crown acts in the public interest when conducting criminal prosecutions, it is said that its discretion should not be influenced or fettered by the threat of a costs award.
[50] The respondents’ position all but disregards the fundamentally different purpose of costs awards in criminal proceedings.
[51] Finally, I would simply note that the fact that Fercan involved an innocent third party by-stander, as opposed to an accused person, is important. First there is a significant access to justice issue as a bystander may incur significant legal costs to enforce his or her Charter rights. Second a bystander is in a more vulnerable position than an accused person since the rules of criminal procedure, which afford accused persons procedural protections, are not available to bystanders. Third, the rationale for limiting costs awards in favour of accused persons to cases of Crown misconduct does not apply with the same force to bystanders. These differences may justify a lower threshold for Crown misconduct: Ciarniello, at paras. 40-42.
[52] Therefore, I conclude that the Summary Conviction Appeal Court judge erred in holding that jurisdiction to conduct an inquiry into costs existed notwithstanding the stay of proceedings under s. 579 of the Criminal Code.
D. Disposition
[53] For the reasons given above, the rationale in Fercan for giving the provincial court jurisdiction to award costs as a result of forfeiture proceedings having been taken against an innocent third party by-stander does not apply here. The Summary Conviction Court’s mandate is to decide criminal cases that can lead to imprisonment for six months or less. It has the implied power to discipline the Crown in rare instances when its process has been abused. When, as here, the Crown has directed the entry of a stay and no challenge has been raised to its conduct in doing so, it is not necessary to the discharge of the Summary Conviction Court’s mandate for it to entertain an application for costs. Applying the functional and contextual approach set out in Dunedin, I conclude that the Summary Conviction Court judge became functus upon the Crown’s exercise of its discretion to stay the proceedings.
[54] For these reasons, I would allow the appeal and grant certiorari prohibiting the respondents’ application for costs from continuing.
Released: “K.M.W.” November 8, 2016
“Karen M. Weiler J.A.”
“I agree Janet Simmons J.A.”
“I agree Gloria Epstein J.A.”
[^1]: Section 579(2) of the Criminal Code provides that the proceedings stayed may be recommenced within the limited time frame of “one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier”, without laying a new information. Since this was a summary conviction matter, the time within which the proceedings could have been commenced is six months. Unless the Crown gives notice that it is going to recommence proceedings within that time frame, “the proceedings shall be deemed never to have been commenced.” Although the Crown could have reinstituted proceedings within six months, that time has now elapsed.
[^2]: The respondents’ costs application alleged: 1) the CRA was negligent in advancing an Information to Obtain search warrants that did not disclose reasonable grounds for the issuance of the search warrants; 2) the Crown did not bring a timely application to have their prior counsel removed due to a conflict of interest; 3) the Crown prevented the respondents from bringing an application to have the evidence obtained from the search warrants excluded; 4) the Crown failed to exercise reasonable care in assessing the reasonableness of the grounds contained in the Information to Obtain the search warrants; and 5) the Crown failed to consider the reasonableness of any of the areas the respondents proposed to cross-examine the Affiant of the Information to Obtain.