R. v. Cole (D.), (2000) 183 N.S.R.(2d) 263 (CA)

• Judge: Chipman, Bateman and Flinn, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 24, 2000
• Jurisdiction: Nova Scotia
• Citations: (2000), 183 N.S.R.(2d) 263 (CA);2000 NSCA 42

R. v. Cole (D.) (2000), 183 N.S.R.(2d) 263 (CA);

 568 A.P.R. 263

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. AP.010

Her Majesty The Queen (appellant) v. Damon Cole (respondent)

(C.A.C. No. 159465; 2000 NSCA 42)

Indexed As: R. v. Cole (D.)

Nova Scotia Court of Appeal

Chipman, Bateman and Flinn, JJ.A.

March 24, 2000.

Summary:

Cole and five others were convicted of aggravated assault. All six appealed. Cole's appeal was heard first. The appeal was allowed; a new trial was ordered. Eleven days before the new trial date, the Crown entered a stay of proceedings, with the intention of retrying all six accused together if the appeals of the other five were also allowed. The Court of Appeal had not yet rendered a decision on the appeals of the other five accused. Six days after the stay, the Court of Appeal dismissed the appeals of the other five accused. That decision was appealed to the Supreme Court of Canada. Before the Supreme Court of Canada ren­dered its deci­sion, and 362 days after enter­ing the stay, the Crown re-instituted pro­ceedings against Cole. Cole applied for a stay of proceedings under s. 24(1) of the Charter, alleging, inter alia, abuse of process.

The Nova Scotia Supreme Court, in a judgment reported 168 N.S.R.(2d) 170; 505 A.P.R. 170, granted a stay of proceedings on the ground of abuse of process. The Crown exercised its discre­tion under s. 579 of the Criminal Code to stay the proceedings, giving it one year to wait for the Supreme Court of Canada ruling before being forced to re-institute the charge. The Crown should have sought an adjourn­ment of the trial pending that ruling. By entering a stay, the Crown circumvented the court making a ruling on an adjourn­ment, thereby avoiding the risk of an adverse ruling. This was "con­spicuous evidence" of improper motives. The Crown unilaterally obtained a 16 month adjournment where it was the court's deci­sion to determine whether an adjournment should be granted. To permit the Crown to continue, in light of its past conduct, would offend the communi­ty's sense of decency and fair play. The accused sought costs against the Crown.

The Nova Scotia Supreme Court, in a judgment reported 179 N.S.R.(2d) 167; 553 A.P.R. 167, ordered that the Crown pay costs of $12,000, a portion of the agreed total legal fees, taxes and disbursements ($20,895.51). The Crown appealed only the costs order.

The Nova Scotia Court of Appeal allowed the appeal and set aside the order requiring the Crown to pay costs. Assuming that the Crown's conduct warranted a stay (which the court doubted), the trial judge erred in im­posing the unreasonable additional remedy of costs against the Crown.

Criminal Law - Topic 255

Abuse of process - Power of court - Re prevention and remedies - [See Practice - Topic 7350 ].

Practice - Topic 7350

Costs - Costs in criminal proceedings - Payable by Crown - Conduct of Crown - Cole and five others were convicted of aggra­vated assault - All six appealed - Cole's appeal was heard first - A new trial was ordered - Eleven days before the new trial date, the Crown entered a stay of pro­ceed­ings, intending to retry all six accused together if their appeals were allowed (limit cost and inconven­ience) - Six days after the stay, the Court of Appeal dis­missed the appeals of the other five accused - That decision was appealed to the Supreme Court of Canada - Before that court ren­dered a decision, and 362 days after enter­ing the stay, the Crown re-instituted pro­ceedings against Cole - The trial judge granted a stay on the ground of abuse of process - The Crown exercised its discre­tion under s. 579 of the Criminal Code to stay the proceed­ings, giving it one year to wait for the Supreme Court of Canada ruling before being forced to re-institute the charge - By entering a stay, the Crown circum­vented a court ruling on an ad­journment, avoiding the risk of an adverse ruling - The trial judge found this to be "conspic­uous evidence" of improper motive - The Crown unilat­erally obtained a 16 month adjournment where it was the court's deci­sion to deter­mine whether an adjourn­ment should be granted - To per­mit the Crown to con­tinue, in light of its past con­duct, would offend the communi­ty's sense of decency and fair play - The trial judge ordered that the Crown pay costs of $12,000, a portion of the agreed total legal fees, taxes and dis­bursements ($20,895.51) - The Nova Scotia Court of Appeal set aside the costs order - Assum­ing that a stay was warranted (which the court doubted), it was unreasonable to im­pose the addi­tional remedy of costs against the Crown.

Cases Noticed:

Exco Corp. Ltd. et al. v. Nova Scotia Savings & Loan Co. et al. (1983), 59 N.S.R.(2d) 331; 125 A.P.R. 331 (C.A.), refd to. [para. 15].

R. v. Power (E.) (1994), 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 23].

R. v. Scott (1989), 116 N.R. 361; 43 O.A.C. 277; 61 C.C.C.(3d) 301 (S.C.C.), refd to. [para. 24].

R. v. McAnish and Cook (1974), 15 C.C.C.(2d) 494 (B.C. Prov. Ct.), refd to. [para. 25].

R. v. Scheller et al. (No. 1) (1977), 32 C.C.C.(2d) 273 (Ont. Prov. Ct.), refd to. [para. 26].

R. v. Weightman and Cunningham (1977), 37 C.C.C.(2d) 303 (Ont. Prov. Ct.), refd to. [para. 30].

R. v. Hickey (1978), 44 C.C.C.(2d) 367 (Ont. Prov. Ct.), refd to. [para. 31].

R. v. Ball (1979), 44 C.C.C.(2d) 533 (Ont. C.A.), refd to. [para. 33].

R. v. Panarctic Oils Ltd. (1982), 38 A.R. 447; 69 C.C.C.(2d) 393 (N.W.T.S.C.), refd to. [para. 34].

R. v. Rogers, [1981] B.C.J. No. 852 (S.C.), refd to. [para. 35].

R. v. Durack (B.D.) (1998), 168 Sask.R. 36; 173 W.A.C. 36 (C.A.), refd to. [para. 36].

Canada (Minister of Citizenship and Im­migration) v. Tobiass et al. (1997), 218 N.R. 81; 118 C.C.C.(3d) 443 (S.C.C.), refd to. [para. 39].

R. v. Regan (G.A.) (1999), 179 N.S.R.(2d) 45; 553 A.P.R. 45; 137 C.C.C.(3d) 449 (C.A.), refd to. [para. 40].

R. v. Creighton (D.J.) and Crawford (C.) (1995), 179 N.R. 161; 81 O.A.C. 359; 96 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 47].

R. v. Quiring (1974), 19 C.C.C.(2d) 337 (Sask. C.A.), refd to. [para. 47].

R. v. Agawa (1975), 28 C.C.C.(2d) 379 (Ont. C.A.), refd to. [para. 47].

Berry v. British Transport Commission, [1961] 3 All E.R. 65 (C.A.), refd to. [para. 50].

R. v. C.A.M. (1996), 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327 (S.C.C.), refd to. [para. 50].

R. v. Pawlowski (M.) (1993), 61 O.A.C. 276; 79 C.C.C.(3d) 353 (C.A.), refd to. [para. 50].

R. v. Jedynack (1994), 15 O.R.(3d) 612 (Gen. Div.), refd to. [para. 52].

R. v. Dostaler (1994), 91 C.C.C.(3d) 444 (N.W.T. S.C.), refd to. [para. 53].

R. v. McKillip (J.D.) (1996), 8 O.T.C. 378 (Gen. Div.), refd to. [para. 54].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 54].

R. v. Chaplin (D.A.) et al. (1995), 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272; 96 C.C.C.(3d) 225 (S.C.C.), refd to. [para. 54].

R. v. Egger (J.H.) (1993), 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 82 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 54].

R. v. Corkum (R.E.) (1997), 163 N.S.R.(2d) 197; 487 A.P.R. 197 (S.C.), refd to. [para. 56].

R. v. Greganti (S.), [2000] O.T.C. Uned. 68 (S.C.), refd to. [para. 58].

R. v. Robinson (C.J.) (1999), 250 A.R. 201; 213 W.A.C. 201 (C.A.), refd to. [para. 59].

R. v. Pang (B.L.) (1994), 162 A.R. 24; 83 W.A.C. 24; 95 C.C.C.(3d) 60 (C.A.), refd to. [para. 60].

Grimshaw v. Dunbar, [1953] 1 All E.R. 351 (H.L.), refd to. [para. 61].

Ward v. James, [1965] 1 All E.R. 563 (C.A.), refd to. [para. 61].

British Columbia v. Worthington (Canada) Inc., [1988] B.C.J. No. 1214 (C.A.), refd to. [para. 61].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 579 [para. 22]; sect. 676.1 [para. 14].

Authors and Works Noticed:

Morgan, Donna C., Controlling Prosecu­torial Powers -- Judicial Review, Abuse of Process and Section 7 of the Charter (1986-87), 29 Crim. L.Q. 15, pp. 39 to 43 [para. 48].

Counsel:

William D. Delaney, for the appellant;

Stanley W. MacDonald, for the respondent.

This appeal was heard on January 31, 2000, before Chipman, Bateman and Flinn, JJ.A., of the Nova Scotia Court of Appeal.

On March 24, 2000, Bateman, J.A., delivered the following judgment for the Court of Appeal.