R. v. Griffin (J.M.), (2011) 510 A.R. 142

• Judge: Côté, Conrad and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Friday June 10, 2011
• Citations: (2011), 510 A.R. 142;2011 ABCA 197

R. v. Griffin (J.M.) (2011), 510 A.R. 142; 527 W.A.C. 142 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.007

In The Matter Of an award of costs against Her Majesty the Queen in Right of Alberta made in favour of the respondent

And In The Matter Of Section 676.1 of the Criminal Code of Canada

Her Majesty the Queen (appellant) v. Jason Murray Griffin (respondent)

(1003-0011-A; 2011 ABCA 197)

Indexed As: R. v. Griffin (J.M.)

Alberta Court of Appeal

Côté, Conrad and McDonald, JJ.A.

June 28, 2011.

Summary:

The accused was charged with dangerous driving causing bodily harm. The accused's counsel wrote a "without prejudice" letter to the Crown prosecutor disclosing the accused's diagnosis of a seizure disorder. Attached was a letter from the accused's doctor providing that he would testify that "it was more than likely that [the accused] had a seizure" causing the accident. With this information, Constable MacPherson obtained a production order for the accused's medical records. At trial, the Crown invited the court to dismiss the charge against the accused because of the diagnosis and his doctor was unable to say with certainty if he had warned the accused not to drive. Despite the acquittal, the accused advanced a Charter application, alleging breaches of ss. 7 and 8 of the Charter and seeking costs against the Crown.

The Alberta Court of Queen's Bench, in a decision reported at 485 A.R. 251, found a breach of s. 8. As a Charter remedy of costs was not available, the court awarded costs based on its inherent jurisdiction. The Crown sought leave to appeal, and if leave was granted, appealed the costs order.

The Alberta Court of Appeal granted leave to appeal, allowed the appeal and set aside the costs order.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction and jurisdiction to stay an action) - [See Practice - Topic 7351].

Practice - Topic 7351

Costs - Costs in criminal proceedings - Payable by Crown - Charter violations - The accused was charged with dangerous driving causing bodily harm - The accused's counsel wrote a "without prejudice" letter to the Crown prosecutor disclosing the accused's diagnosis of a seizure disorder - Attached was a letter from the accused's doctor providing that he would testify that "it was more than likely that [the accused] had a seizure" causing the accident - With this information, Constable MacPherson obtained a production order for the accused's medical records - At trial, the Crown invited the court to dismiss the charge against the accused because of the diagnosis and his doctor was unable to say with certainty if he had warned the accused not to drive - Despite the acquittal, the accused advanced a Charter application and sought costs - The trial judge ordered costs payable by the Crown on the basis of its inherent jurisdiction - The Alberta Court of Appeal set aside the costs order - In order for the inherent jurisdiction to award costs to apply, the test required circumstances which were rare, unique, exceptional or never-to-occur again - The court did not agree that this was one of those cases - This was not a case where an accused incurred costs as a result of the Crown's efforts to resolve a systemic issue of public interest - Rather, it was the accused who insisted on the Charter application following trial, in circumstances where he had already been acquitted - Moreover, the accused was unsuccessful in that application - Although he established a s. 8 breach, he did not establish misconduct justifying a Charter remedy - Having lost the application he insisted on bringing, there was no unfairness to his absorbing his own costs of that application - Finally, this was not a case where there was a marked departure from the standards and conduct expected of the prosecution.

Cases Noticed:

Costello and Dickoff v. Calgary (City) (1997), 209 A.R. 1; 160 W.A.C. 1; 1997 ABCA 281, refd to. [para. 10].

R. v. Robinson (C.J.) (1999), 250 A.R. 201; 213 W.A.C. 201; 1999 ABCA 367, refd to. [para. 30].

R. v. Neil (D.L.) (2003), 320 A.R. 274; 288 W.A.C. 274; 2003 ABCA 45, refd to. [para. 13].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1, refd to. [para. 13].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 21].

Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81, refd to. [para. 21].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 2003 ABCA 121, refd to. [para. 22].

R. v. S.A.B. et al., [2003] 2 S.C.R. 678; 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1; 2003 SCC 60, refd to. [para. 22].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 25].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 25].

Canada (Attorney General) v. Foster et al. (2006), 217 O.A.C. 173; 274 D.L.R.(4th) 253 (C.A.), refd to. [para. 27].

R. v. King (1986), 26 C.C.C.(3d) 349; 16 W.C.B. 123 (B.C.C.A.), refd to. [para. 28].

R. v. Taylor (T.E.) (2008), 261 N.S.R.(2d) 247; 835 A.P.R. 247; 2008 NSCA 5, refd to. [para. 29].

R. v. Pawlowski (M.) (1993), 61 O.A.C. 276; 12 O.R.(3d) 709; 20 C.R.(4th) 233 (C.A.), refd to. [para. 31].

R. v. Garcia (M.) (2005), 195 O.A.C. 64; 194 C.C.C.(3d) 361; 64 W.C.B.(2d) 103 (C.A.), refd to. [para. 32].

R. v. Ralph (S.) (2008), 281 Nfld. & P.E.I.R. 347; 863 A.P.R. 347; 2008 NLCA 71, refd to. [para. 33].

P.S.C. v. British Columbia (Attorney General), [2007] B.C.T.C. Uned. D51; 222 C.C.C.(3d) 230; 2007 BCSC 895, refd to. [para. 33].

R. v. Taylor (S.C.) (2007), 240 B.C.A.C. 257; 398 W.A.C. 257; 73 W.C.B.(2d) 255; 2007 BCCA 250, refd to. [para. 33].

Counsel:

J.R. Russell, for the appellant;

S.N.D. Smith, for the respondent.

This application and appeal were heard on June 10, 2011, at Edmonton, Alberta, by Côté, Conrad and McDonald, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered on June 28, 2011.