R. v. Trask, [1987] 2 S.C.R. 304

Wilmour S. Trask Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. trask

File No.: 17747.

1986: June 25; 1987: October 15.

Present: Dickson C.J. and Beetz, McIntyre, Chouinard[^1], Lamer, Wilson and Le Dain JJ.

rehearing of appeal on issue of costs

Costs ‑‑ Judgment allowing appeal silent as to costs ‑‑ Whether judgment rendered by this Court should be amended by awarding costs on a solicitor and client basis ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 758, 771(3) ‑‑ Supreme Court Act, R.S.C. 1970, c. S‑19, s. 49.

Appellant's appeal to this Court was allowed and his acquittal restored but the order was silent as to costs. The order granting appellant leave to appeal, however, had provided that costs of the application be decided on the hearing of the appeal. A rehearing was ordered to consider whether this Court's judgment should be amended by awarding appellant costs on a solicitor and client basis.

Held: The appeal should be dismissed.

The wide discretion given to the courts in Part XXIV of the Criminal Code should not be fettered by adopting the propositions that (l) costs should be allowed to all successful accused appellants in summary conviction matters and that (2) an order for costs on a solicitor and client basis should follow where an infringement of a Charter right is found. Sections 758 and 771(3) of the Code and s. 49 of the Supreme Court Act do not support such a reading. While the Crown may often be required to pay costs when it appeals a summary conviction matter, it does not follow that the private party who successfully appeals should have his costs. When the Crown appeals a summary conviction matter in order to settle a point of law, the public benefits. The Court can require the Crown to pay the respondent's costs because an individual should not be put to substantial expense because of the Crown's initiative in seeking to effect a valid social purpose. This is not the situation here. There was no parallel with the Therens case where no order for costs was sought or made.

Cases Cited

Referred to: R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; Trask v. The Queen, 1985 CanLII 30 (SCC), [1985] 1 S.C.R. 655; R. v. Ouellette, 1980 CanLII 9 (SCC), [1980] 1 S.C.R. 568.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 10, 24.

Criminal Code, R.S.C. 1970, c. C‑34, ss. 236(1) (formerly s. 234(1), as re‑en. by 1974‑75‑76, c. 93, s. 17, and now s. 237, as re‑en. by 1985, c. 19, s. 36), 758, 771(3).

Supreme Court Act, R.S.C. 1970, c. S‑19, s. 49.

Supreme Court Rules, SOR/83‑74, s. 51.

RE-HEARING of an appeal on a matter of costs in light of the silence as to costs of this Court's judgment allowing appellant's appeal, 1985 CanLII 30 (SCC), [1985] 1 S.C.R. 655. Appeal dismissed.

H. Scott Fairley, for the appellant.

W. G. Burke‑Robertson, Q.C., for the respondent.

The judgment of the Court was delivered by

[1] McIntyre J.‑‑The appellant was charged, under s. 236(1) of the Criminal Code, R.S.C. 1970, c. C‑34 (formerly s. 234(1), as re‑en. by 1974‑75‑76, c. 93, s. 17, and now s. 237, as re‑en. by 1985, c. 19, s. 36), with driving a motor vehicle, having consumed alcohol in such quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. On May 6, 1982, he complied with a demand to accompany an R.C.M.P. constable to the police station and submit to a breathalyzer test. He was not informed of his right to retain and instruct counsel without delay, as guaranteed by the Canadian Charter of Rights and Freedoms.

[2] At trial, he sought a remedy under s. 24 of the Charter. The trial judge found that he had been detained within the meaning of s. 10 of the Charter and that there had been a denial of his right to counsel. He dismissed the charge as the appropriate remedy under s. 24 of the Charter. The Crown's appeal to the Newfoundland Court of Appeal was allowed and the acquittal was set aside. The appellant appealed to this Court by leave, granted June 20, 1983. The issue raised in the appeal was the same as that raised in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, and the appeals were heard together. Trask's appeal was allowed and is now reported, 1985 CanLII 30 (SCC), [1985] 1 S.C.R. 655.

[3] The order granting Trask his leave to appeal provided that: ". . . costs of this application is to be decided upon the hearing of the appeal". This Court's order allowing the appeal and restoring the acquittal was silent on the question of costs. A rehearing limited to the question of costs was ordered on the appellant's motion on January 30, 1986, under Rule 51 of the Supreme Court Rules, SOR/83‑74. The question upon which the rehearing was ordered was stated by the Chief Justice in these words:

Whether the judgment rendered by this Court on May 23, 1985 ought to be amended by awarding costs to the appellant on a solicitor and client basis?

[4] There have been some doubts about the power of a court to award costs against the Crown in summary conviction matters. These doubts were set at rest in R. v. Ouellette, 1980 CanLII 9 (SCC), [1980] 1 S.C.R. 568, where Beetz J., speaking for a unanimous court, after reviewing the authorities clearly held that ss. 758 and 771(3) of Part XXIV of the Criminal Code must be considered to bind the Crown, and their effect is to confer on the Court a broad discretion with regard to the question of costs.

[5] The appellant advances three propositions in support of his contention that he should be awarded costs on a solicitor and client basis. First, there should be recognized the general principle that costs should be allowed to all successful accused appellants in summary conviction matters. Secondly, where an infringement of a Charter right is found, an order for costs on a solicitor and client basis should follow. Finally, it is argued that just as the Crown is often required to pay costs when it appeals a summary conviction matter, the private party who successfully appeals should have his costs. The respondent argues that, while the Court in the exercise of its discretion in summary conviction matters has followed the practice, on occasion, of awarding party and party costs to successful appellants and, on other occasions, none at all, no personal party‑‑over a period of thirty years‑‑has been awarded costs on a solicitor and client basis. The respondent also argues that the order granting the rehearing is limited to a consideration of solicitor and client costs alone and there can be no consideration of party and party costs on this motion.

[6] As to the first two submissions, I would say at once that to adopt these propositions would be to fetter the wide discretion which has been given in this respect in Part XXIV of the Criminal Code, a step which this Court should not take. It is not possible, in my view, to read any such general rule, as is contended for here, into the words of s. 758 or s. 771(3) of the Code or s. 49 of the Supreme Court Act, R.S.C. 1970, c. S‑19. I would not give effect to these grounds.

[7] The third argument‑‑that this situation is similar to one in which the Crown seeks to appeal a summary conviction matter and the Court has made it a condition of granting leave that the Crown pay costs‑‑I would also reject. The Court, from time to time, when the Crown wishes to appeal a summary conviction matter in order to settle a point of law, will require the Crown to pay the respondent's costs. This is because it is the public‑at‑large who are the beneficiaries of such a step 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. That is not the situation before us now and the same logic does not apply. There is nothing remarkable about this case, no oppressive or improper conduct is alleged against the Crown, and it was the appellant, not the Crown, who brought the matter to this Court. Furthermore, there is no parallel here with the case of Therens, as argued by the appellant. No order for costs was sought or made in that case. According to the record, the matter was the subject of agreement between the Attorney General for Saskatchewan and Therens and was not dealt with by this Court.

[8] For these reasons, I would refuse the order for solicitor and client costs. While the issue of party and party costs may not in strict form have been in issue on the rehearing in this Court, I would refuse to make an order respecting party and party costs for the reasons expressed in respect of solicitor and client costs. I would, accordingly, answer the question in the negative and dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Mills & Dymond, Clarenville.

Solicitor for the respondent: J. Thomas Eagan, Gander.

[^1] Chouinard J. took no part in the judgment.