R. v. Ouellette, 1980 CanLII 9 (SCC), [1980] 1 SCR 568

SUPREME COURT OF CANADA

R. v. Ouellette, 1980 CanLII 9 (SCC), [1980] 1 SCR 568

Date: 1980-03-18

Her Majesty The Queen Appellant; and

Noël Ouellette Respondent.

1979: December 6; 1980: March 18.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law — Summary convictions — Appeal costs — Payment by the Crown — Criminal Code, R.S.C. 1970, c. C-34, ss. 720(1), 738(4), 744(1), 748, 752.1, 755, 758, 759, 771 — Interpretation Act, R.S.C. 1970, c.1-23, s. 16.

Respondent was found guilty by a summary conviction court of failing to stop at the scene of an accident and ordered to pay a fine of $250 and costs or one month in jail in default of payment. His appeal to the Superior Court from this judgment was dismissed as to the conviction but allowed as to the sentence, which was reduced to a $100 fine. In addition, the Superior Court judge ordered the Crown to pay the costs of the appeal, which he set at $75. Appellant appealed to the Court of Appeal from the part of the judgment which ordered it to pay costs to respondent. A majority of the Court of Appeal dismissed the appeal and in its turn ordered the Crown to pay the costs of this second appeal, amounting to $200. Hence the appeal to this Court, which must decide whether the Superior Court and the Court of Appeal could order Her Majesty to pay costs to respondent.

Held: The appeal should be dismissed.

The dissenting judge on the Court of Appeal relied on the common law rule in concluding that the Crown cannot be obliged to pay costs. However, this rule is far from being as firm and precise as he considered it to be, and it is by no means certain that at the present time it prevents the courts from ordering the Crown to pay costs. In any case, in the instant case the question can be resolved solely on the basis of the relevant provisions of the Criminal Code. As s. 16 of the Interpretation Act does not exclude the rule by which the various provisions of the statute are each interpreted in light of the others, ss. 758 and 771(3) of the Criminal Code must be interpreted as implicitly binding Her Majesty, when they are read not in isolation but in the context of Part XXIV on summary convictions. With regard to an appeal by trial de novo in the Superior Court, Parliament wished to confer on the Superior Court the widest possible discretion regarding costs, a discretion limited only by what is just and reasonable. In some cases, it would not be either just or reasonable that the Crown be not ordered to pay the costs of the appeal. It follows that the provision of s. 758 is binding on Her Majesty. With regard to the costs of the appeal to the Court of Appeal, they are covered by s. 771(3), which is also binding on Her Majesty. It is worded in terms at least as broad as s. 758, and it would be extraordinary for the Court of Appeal to have powers in the matter of costs less wide than the Superior Court, especially as no action can be brought before it without leave.

Johnson v. The King, [1904] A.C. 817; Vaithinatha Pillai v. The King-Emperor (1913), 29 T.L.R. 709; Attorney-General for British Columbia v. Canadian Pacific Railway, [1906] A.C. 204; Royal Bank of Canada v. Rex, 1913 401 (UK JCPC), [1913] A.C. 283, reversing (1911), 1913 908 (AB SCAD), 17 W.L.R. 508; Attorney-General for the Dominion of Canada v. Ritchie Contracting and Supply Company, 1919 418 (UK JCPC), [1919] A.C. 999; Caron v. The King, 1924 461 (UK JCPC), [1924] A.C. 999; Attorney-General for Quebec v. Nipissing Central Ry. Co. and Attorney-General for Canada, 1926 280 (UK JCPC), [1926] A.C. 715; Corporation of the City of Toronto v. The King, 1931 465 (UK JCPC), [1932] A.C. 98; Treasurer of Ontario v. Blonde and Treasurer of Ontario v. Aberdein, 1946 349 (UK JCPC), [1947] A.C. 24; Attorney-General for Saskatchewan v. Canadian Pacific Ry. Co., 1953 416 (UK JCPC), [1953] A.C. 594; Attorney-General for Ontario v. Israel Winner, 1954 289 (UK JCPC), [1954] A.C. 541; Russell v. The Queen (1882), 7 A.C. 829; Attorney-General of Ontario v. Mercer (1883), 8 A.C. 767; Hodge v. The Queen (1883), 9 A.C. 117; Attorney-General for Quebec v. Reed (1884), 10 A.C. 141; Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437; British Coal Corporation v. The King, 1935 308 (UK JCPC), [1935] A.C. 500; Attorney-General of Canada v. Jackson, 1944 310 (NB CA), [1945] 2 D.L.R. 438; R. v. Guidry, 1965 710 (NB CA), [1966] 2 C.C.C. 161; R. v. Higgins (1977), 1977 3229 (NS SC), 1 C.R. (3d) 382; Ferguson v. Attorney-General of Canada, 1971 1306 (BC SC), [1971] 2 W.W.R. 637; Re Imperial Canadian Trust, 1942 438 (MB CA), [1942] 2 D.L.R. 96; Provincial Treasurer for the Province of Manitoba v. Minister of Finance for Canada, 1943 29 (SCC), [1943] S.C.R. 370, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec,¹ dismissing the appeal from a judgment of the Superior Court and ordering the Crown to pay the costs of the appeal. Appeal dismissed.

Jean-Marie Tanguay, for the appellant.

Richard Perras, for the respondent.

English version of the judgment of the Court delivered by

BEETZ J.—The issue is whether the Superior Court, sitting in appeal from a judgment of a summary conviction court, and the Court of Appeal, sitting in appeal from the judgment thus given by the Superior Court, may order Her Majesty to pay costs to respondent.

The circumstances which gave rise to the case are straightforward and not in dispute.

Respondent was found guilty by a summary conviction court, pursuant to s. 233(2) of the Criminal Code, of failing to stop at the scene of an accident, and ordered to pay a fine of $250 and costs or one month in jail in default of payment. He appealed from the conviction and the sentence to the Superior Court. His appeal was dismissed as to the conviction but allowed as to the sentence, which was reduced to a $100 fine. Boilard J. of the Superior Court handed down the following judgment regarding the costs of appeal:

[TRANSLATION] That leaves the costs of appeal that may exist, which as Mr. Beaudoin pointed out are now the same as the conviction—and I refer to these when I deal with the appeal from the sentence.

The accused was right to appeal from the sentence. I allowed his appeal, I did not give him a medal, I lowered . I reduced the sentence, I made it, in my humble opinion and with the greatest respect for the trial judge, I made it what appeared to me to be adequate. I think it would be unfair to oblige the accused to pay the costs of appeal in order to come before a court and ask it to make, within reasonable and adequate limits, a sentence which he complains of.

I think, as I say, that it would clearly be improper to oblige him to invest a sum of money to ask a court to reduce a penalty which has been imposed on him.

For this reason, I have decided to grant the accused, or rather the appellant, costs which I now set at seventy-five dollars ($75.00), and I order the Attorney General to pay the said sum of seventy-five dollars ($75.00) within thirty (30) days of this judgment to the office of the Clerk of the Peace and the Crown for the district of Terrebonne.

On receipt of the said sum, the Clerk shall pay it to appellant or to any person authorized by the latter to receive it.

Appellant appealed to the Court of Appeal from this judgment, and in a majority decision by Kaufman J., concurred in by Dubé J., the Court dismissed the appeal and in its turn ordered the Attorney General to pay respondent the costs of the appeal, amounting to $200. Paré J. dissented on the ground that, at common law, [TRANSLATION] "the Crown cannot be obliged to pay costs unless this is expressly provided for by law", and that the provision relating to the appeal heard by the Superior Court, s. 758 of the Criminal Code, contains [TRANSLATION] "no provision expressly applicable to Her Majesty", and cannot be applied to her in view of s. 16 of the Interpretation Act, R.S.C. 1970, c. I-23:

16. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except only as therein mentioned or referred to.

The dissenting judge would therefore have reversed the judgment of the Superior Court and recommended only that the Attorney General pay the office of the Clerk of the Peace and the Crown the sum of $75 to be disposed of in accordance with law.

This is the decision against which this appeal is brought.

In my view, the Court of Appeal correctly interpreted the relevant sections of the Criminal Code, the provisions of which suffice to dispose of the case. However, before coming to that, it may be useful to show that the common law rule on which the dissenting judge relied is far from being as firm and precise as he considered it to be.

This is how Blackstone states this rule in his Commentaries on the Laws of England, 18th ed., 1829, Vol. III, *399:

The king (and any person suing to his use) shall neither pay nor receive costs; for ... as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them.

(See, to the same effect, Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown, 1820, at pp. 310 and 311).

In a frequently cited case, Johnson v. The King², the Judicial Committee of the Privy Council announced that it proposed to abide by this rule in the future but qualified it as follows (at p. 825):

... their Lordships are of opinion that, in dealing with costs in cases between the Crown and a subject, this Board ought to adhere to the practice of the House of Lords, and that in future the rule should be that the Crown neither pays nor receives costs unless the case is governed by some local statute, or there are exceptional circumstances justifying a departure from the ordinary rule.

In another case, Vaithinatha Pillai v. The King-Emperor³, the Judicial Committee indicated its intention to follow the same policy in criminal cases.

It should be observed, first of all, that the question appears to be regarded as one of practice rather than of prerogative.

It must also be noted that the rule is not absolute: apart from any legislative provision, it contemplates the possibility of derogations which are not identified apart from their exceptional nature.

Furthermore, the Judicial Committee Act, 1833 (3 & 4 Will. IV, c. 41), one of the principal statutes setting forth the jurisdiction of the Judicial Committee of the Privy Council, includes a provision, s. 15, on the awarding of costs, but does not empower the Judicial Committee either expressly or by implication to award them to the Crown or against it.

In spite of the absence of any enabling legislative provision, and despite the rule which it had just created for itself in Johnson, the Judicial Committee, though without mentioning the exceptional nature of the circumstances, at least not expressly, has several times ordered the Crown to pay costs or awarded costs to the Crown, up to the last cases which it heard on Canadian matters: Attorney-General for British Columbia v. Canadian Pacific Railway⁴; Royal Bank of Canada v. Rex⁵; Attorney-General for the Dominion of Canada v. Ritchie Contracting and Supply Company⁶; Caron v. The King⁷; Attorney-General for Quebec v. Nipissing Central Ry. Co. and Attorney-General for Canada⁸; Corporation of the City of Toronto v. The King⁹; Treasurer of Ontario v. Blonde and Treasurer of Ontario v. Aberdein¹⁰; Attorney-General for Saskatchewan v. Canadian Pacific Ry. Co.¹¹; Attorney-General for Ontario v. Israel Winner¹².

In fact, the Judicial Committee merely continued, in the matter of costs, the policy which it followed before the Johnson case: Russell v. The Queen¹³; Attorney-General of Ontario v. Mercer¹⁴; Hodge v. The Queen¹⁵; Attorney-General for Quebec v. Reed¹⁶; Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick¹⁷.

It is true that, for historical reasons, the conclusion of a decision of the Judicial Committee takes the form, on costs as with anything else, of a recommendation to Her Majesty, but this is purely a matter of form: British Coal Corporation v. The King¹⁸, at p. 512.

In Canada, practice appears to have varied at different times and depending on the province. In the absence of legislative provisions empowering them to award costs to the Crown or against it, certain courts have felt themselves bound by Johnson: this is what the Supreme Court of Alberta held in R. v. Royal Bank of Canada¹⁹; this case was taken on appeal to the Judicial Committee, which on this point disregarded its own decision in Johnson and ordered the Crown to pay costs in all courts (supra).

The Court of Appeal of New Brunswick also followed this practice in Attorney-General of Canada v. Jackson²⁰, a civil case, but reversed field in R. v. Guidry²¹, a summary conviction case.

In Nova Scotia, it appears to be the practice to award costs to the Crown, or to order it to pay costs on appeal in summary conviction cases: R. v. Higgins²².

In Ontario, legislative provisions empowered the courts to make rules of practice allowing them to order the Crown to pay costs; after these rules were repealed, the custom has continued without legislative foundation; this sequence of events is described in a judgment of the Supreme Court of British Columbia, Ferguson v. Attorney-General of Canada²³, and a decision of the Court of Appeal of Manitoba, Re Imperial Canadian Trust²⁴, reversed by this Court, but on the merits, and without any particular discussion of the question of costs: Provincial Treasurer for the Province of Manitoba v. Minister of Finance for Canada²⁵.

In cases cited in the Ferguson judgment, the common law rule is described as an anachronism that should be eliminated. Accordingly, it is by no means certain that at the present time the common law prevents the courts from ordering the Crown to pay costs.

In any case, the question can be resolved solely on the basis of the relevant provisions of the Criminal Code. However, it should first be noted that s. 16 of the Interpretation Act, cited above, no longer includes the word "expressly" as it did formerly. This section does not exclude the rule by which the various provisions of a statute are each interpreted in light of the others, and it is possible that Her Majesty be implicitly bound by legislation if that is the interpretation which the legislation must be given when it is placed in its context. In my view, this is the interpretation that must be given to ss. 758 and 771(3) of the Criminal Code, when they are read not in isolation but in the context of Part XXIV on summary convictions.

The first section of Part XXIV, s. 720, contains definitions including the following:

720. (1) In this Part

"informant" means a person who lays an information;

"prosecutor" means an informant or the Attorney General or their respective counsel or agents.

The legislator accordingly intended to refer to the Crown and bind it every time he used the expression "prosecutor". The Crown may thus be ordered to pay costs at trial in the situation contemplated by s. 738(4):

(4) Where the prosecutor does not appear at the time and place appointed for the resumption of an adjourned trial, the summary conviction court may dismiss the information with or without costs.

On the other hand, it would appear that only the informant or the defendant, and not the Crown, may be ordered to pay costs under s. 744(1), since there is no mention of a presecutor:

744. (1) The summary conviction court may in its discretion award and order such costs as it considers reasonable and not inconsistent with such of the fees established by section 772 as may be taken or allowed in proceedings before that summary conviction court, to be paid

(a) to the informant by the defendant, where the summary conviction court convicts or makes an order against the defendant, or

(b) to the defendant by the informant, where the summary conviction court dismisses an information.

Is there an anomaly here? Although in principle costs are compensatory and not punitive, it is possible that the intent was to discourage, through fear of being ordered to pay costs, private frivolous prosecutions inspired by vindictiveness. Such considerations are deemed not to apply in the case of prosecutions authorized by the Attorney-General or undertaken by him, and in any event the fear of costs would not discourage prosecutions in such a case.

At the appellate level such considerations give way to factors of a different kind, like those mentioned by Boilard J. of the Superior Court in the judgment referred to above. Moreover, ordering the informant to pay costs, which remains possible when the information is dismissed, would mean in practice that the costs would be paid by the Attorney-General when, as in the case at bar, the informant is an officer of the Quebec Police Force authorized by the Attorney-General to act as an informant.

The case at bar is concerned with the costs of appeal, but the foregoing indicates that the legislator specifically contemplated the possibility that the Crown be ordered to pay the costs at trial.

Section 748 gives a right of appeal, in the circumstances which it states, to the defendant, the informant, the Attorney-General of the province or his agent and the Attorney-General of Canada or his agent. To some extent, therefore, it defines the word "appellant", which thus includes the Attorney-General.

Section 752.1 prescribes the procedure when the appellant is the informant:

752.1 (1) The prosecutor in proceedings before a summary conviction court by whom an appeal is taken under section 748 shall, forthwith after filing the notice of appeal and proof of service thereof in accordance with section 750, appear before a justice, and the justice shall, after giving the prosecutor and the respondent a reasonable opportunity to be heard, order that the prosecutor

(a) give an undertaking as prescribed in this section, or

(b) enter into a recognizance in such amount with or without sureties and with or without deposit of money or other valuable security as the justice directs.

(2) The condition of an undertaking or recognizance given or entered into under this section is that the prosecutor will appear personally or by counsel at the sittings of the appeal court at which the appeal is to be heard.

Because the word "prosecutor" is used, these provisions, which deal inter alia with security for costs, would be binding on the Attorney-General. This is why the legislator excludes him in s. 752.1(3):

(3) This section does not apply in respect of an appeal taken by the Attorney General or by counsel acting on behalf of the Attorney General.

The same principle is observed in ss. 763, 764(3) and 766(5) in connection with an appeal by stated case.

Furthermore, under the provisions of s. 766(1) and (2), where a summary conviction court refuses to state a case the "appellant" may apply to the Superior Court for an order directing it to proceed, but be ordered to pay costs if he fails. As we have seen, the word "appellant" includes the Attorney-General.

Section 755, relating to an appeal by trial de novo, provides that the provisions of ss. 729 to 744 apply mutatis mutandis for this purpose, to the extent that these sections are not inconsistent with ss. 748 to 760. It follows that s. 738(4) must be applied to any appeal by trial de novo, and that the Crown may be ordered to pay costs when its representative does not appear at the resumption of an adjourned hearing.

Sections 758 and 759(1), relating to trials de novo heard by the Superior Court, read as follows:

758. Where an appeal is heard and determined or is abandoned or is dismissed for want of prosecution, the appeal court may make any order with respect to costs that it considers just and reasonable.

759. (1) Where the appeal court orders the appellant or respondent to pay costs, the order shall direct that the costs be paid to the clerk of the court, to be paid by him to the person entitled to them, and shall fix the period within which the costs shall be paid.

By these sections, the legislator indicated his intent to dispense in part at the appellate level with the provisions of s. 744 relating to trial level costs. First, the quantum of the costs is left entirely in the discretion of the Superior Court and is no longer limited by s. 772, to which s. 744 refers. Second, the order to pay costs is no longer tied to the success or failure of the action. Additionally, there is no further mention of an "informant" and a defendant, but, in s. 759(1) there is mention of an "appellant" or a respondent. Finally, it would appear that by s. 758 Parliament wished to confer on the Superior Court the widest possible discretion regarding costs, a discretion limited only by what is just and reasonable. In some cases, it would not be either just or reasonable that the Crown be not ordered to pay the costs of the appeal.

In my opinion the legislator intended, at the appellate level, to place the Attorney-General and the accused on an equal footing from the standpoint of costs, except, as Kaufman J. correctly points out, in the case where he expressly provided to the contrary with regard to the necessity of providing security. The dissenting judge observed that s. 759(3) provides for imprisonment in the event that costs are not paid. In my opinion, this argument is not conclusive: as respondent noted in his brief, s. 759(3) cannot be applied to corporations either, yet these remain subject to s. 759(1).

Accordingly, I conclude that the provision of s. 758 is binding on Her Majesty.

There remains the question of the costs of the appeal to the Court of Appeal. It is covered by s. 771:

771. (1) An appeal to the court of appeal, as defined in section 601 may, with leave of that court, be taken on any ground that involves a question of law alone, against

(a) a decision of a court in respect of an appeal under section 755, or

(b) a decision of a superior court in respect of a stated case under section 768, except where the superior court to which the case was stated is the Court of Appeal.

(2) Sections 601 to 616 apply mutatis mutandis to an appeal under this section.

(3) Notwithstanding subsection (2), the court of appeal may make any order with respect to costs that it considers proper in relation to an appeal under this section.

(4) The decision of the court of appeal may be enforced in the same manner as if it had been made by the summary conviction court before which the proceedings were originally heard and determined.

(5) The Attorney General of Canada has the same rights of appeal in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government as the Attorney General of a province has under this Part.

In my opinion, subs. (3) of this section is also binding on Her Majesty. First, it is worded in terms at least as broad as s. 758. Secondly, I think it would be extraordinary for the Court of Appeal to have powers in the matter of costs less wide than the Superior Court, especially as no action can be brought before it without leave.

The appeal should be dismissed and, in accordance with the order giving Her Majesty The Queen leave to appeal to this Court, the Attorney-General of Quebec shall pay solicitor and client costs.

Appeal dismissed

Solicitor for the appellant: Guy Fortier, St-Jérôme, Québec.

Solicitor for the respondent: Richard Perras, St-Jérôme, Québec.

Footnotes

1. 1[1979] C.A. 143.
2. 2[1904] A.C. 817.
3. 3(1913), 29 T.L.R. 709.
4. 4[1906] A.C. 204.
5. 51913 401 (UK JCPC), [1913] A.C. 283.
6. 61919 418 (UK JCPC), [1919] A.C. 999.
7. 71924 461 (UK JCPC), [1924] A.C. 999.
8. 81926 280 (UK JCPC), [1926] A.C. 715.
9. 91931 465 (UK JCPC), [1932] A.C. 98.
10. 101946 349 (UK JCPC), [1947] A.C. 24.
11. 111953 416 (UK JCPC), [1953] A.C. 594.
12. 121954 289 (UK JCPC), [1954] A.C. 541.
13. 13(1882), 7 A.C. 829.
14. 14(1883), 8 A.C. 767.
15. 15(1883), 9 A.C. 117.
16. 16(1884), 10 A.C. 141.
17. 17[1892] A.C. 437.
18. 181935 308 (UK JCPC), [1935] A.C. 500.
19. 191913 401 (UK JCPC), [1913] A.C. 283, reversing (1911), 1913 908 (AB SCAD), 17 W.L.R. 508.
20. 201944 310 (NB CA), [1945] 2 D.L.R. 438.
21. 211965 710 (NB CA), [1966] 2 C.C.C. 161.
22. 22(1977), 1977 3229 (NS SC), 1 C.R. (3d) 382.
23. 231971 1306 (BC SC), [1971] 2 W.W.R. 637.
24. 241942 438 (MB CA), [1942] 2 D.L.R. 96.
25. 251943 29 (SCC), [1943] S.C.R. 370.