Court File and Parties

COURT FILE NO.: CV-16-257 DATE: 2016-07-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE CORPORATION OF THE CITY OF THUNDER BAY, Applicant vs. GURPREET SINGH-SIDHU, Respondent

HEARD: July 28, 2016 BEFORE: Pierce J.

COUNSEL: Peter Hollinger, for the Applicant Gurpreet Singh-Sidhu, Respondent, not appearing Rhonda Howells, Northwest Paralegals, Agent for the Respondent at trial, (not appearing)

ENDORSEMENT

[1] The prosecutor, City of Thunder Bay, seeks an order for certiorari pursuant to s. 140 of the Provincial Offences Act, R.S.O. 1990, c. P.33 to quash the order of His Worship Justice of the Peace B. Caron, who ordered $100 costs payable to the defendant. Mr. Singh-Sidhu did not appear on this application.

[2] Since section 135(1) of the Act permits appeals only from acquittal, conviction or sentence, and the relief sought does not fall under those categories, the prerogative remedy of certiorari is applicable.

[3] The defendant, who lives in Montreal, travelled to Thunder Bay for trial. The prosecution’s witness did not appear and the prosecutor withdrew its case, whereupon the Justice of the Peace ordered $100 costs payable to the defendant, pursuant to s. 60(2) of the Act. These “costs” are for witness fees and expenses. Had the defendant testified, he would have had status as a witness and such an order would have been available to the court.

[4] However, the defendant did not testify and, therefore, was not a witness at trial.

[5] In R. v. Lem, para 6, the court held, in considering s. 60(2):

…. a defendant who does not testify is not a witness and, therefore, is not eligible under the section for costs towards his or her attendance at trial.

[6] Therefore, the learned Justice of the Peace erred in awarding “costs” to a defendant who did not testify.

[7] Certiorari is granted. The costs order of Justice of the Peace B. Caron of May 9, 2016 is quashed.

“Original signed by”____ The Hon. Madam Justice H.M. Pierce

DATE: July 29, 2016