R. v. Taylor (T.E.), 2008 NSCA 5

• Judge: Cromwell, Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 09, 2007
• Jurisdiction: Nova Scotia
• Citations: 2008 NSCA 5;(2008), 261 N.S.R.(2d) 247 (CA)

R. v. Taylor (T.E.) (2008), 261 N.S.R.(2d) 247 (CA);

    835 A.P.R. 247

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JA.048

Her Majesty the Queen (appellant) v. Terry E. Taylor (respondent)

(CAC 280365; 2008 NSCA 5)

Indexed As: R. v. Taylor (T.E.)

Nova Scotia Court of Appeal

Cromwell, Saunders and Oland, JJ.A.

January 18, 2008.

Summary:

Taylor applied for an order of certiorari setting aside a search warrant. He argued that the information sworn to obtain contained incomplete and misleading information and that the justice of the peace who issued the warrant previously acted for his wife in a solicitor and client relationship, creating a reasonable apprehension of bias.

The Nova Scotia Supreme Court, in a decision reported at 247 N.S.R.(2d) 382; 785 A.P.R. 382, allowed the application and quashed the search warrant. Taylor applied for costs.

The Nova Scotia Supreme Court, in a decision reported at 253 N.S.R.(2d) 257; 807 A.P.R. 257, allowed the application and awarded costs of $17,000 in Taylor's favour. The Crown appealed.

The Nova Scotia Court of Appeal allowed the appeal.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - Taylor successfully applied for an order of certiorari setting aside a search warrant - The information sworn to obtain contained incomplete and misleading information presented by a Canada Revenue Agency officer - A chambers judge awarded costs against the Crown - The Agency's conduct amounted to serious negligence bordering on gross negligence - The egregious and oppressive conduct continued until well into the course of the prosecution, even after the decision quashing the warrant, with the refusal to return the seized items continuing until the eve of a hearing on that issue - Finally, Taylor's Charter right against reasonable search and seizure was violated - The Nova Scotia Court of Appeal allowed a Crown appeal - The chambers judge erred in holding that the impugned conduct of the Agency officials was sufficiently tied to the Crown as to make it liable for an additional remedy of costs - There was no evidence upon which the chambers judge could conclude that the exceptional remedy of costs against the Crown in a criminal proceeding was warranted, whether on the basis of a Charter violation, or applying the court's own inherent jurisdiction at common law - Further, the Canada Revenue Agency Act (s. 4(2)), and the Crown Liability and Proceedings Act were of no assistance to Taylor - See paragraphs 1 to 93.

Criminal Law - Topic 4591

Procedure - Costs - Against the Crown - [See Civil Rights - Topic 8380.7 ].

Criminal Law - Topic 4591

Procedure - Costs - Against the Crown - The Nova Scotia Court of Appeal discussed under what circumstances the Crown would be liable for costs in a criminal proceeding and held that "first, in criminal proceedings, where exceptional circumstances exist, a costs award may be made against the Crown, whether as a remedy pursuant to s. 24(1) of the Charter or pursuant to the court's own inherent jurisdiction. Second, the prosecution's own misconduct may draw a costs sanction in criminal proceedings where, for example, its actions go well beyond inadvertence or carelessness, and amount to oppressive or otherwise improper conduct. Examples would include a Crown Attorney's failure to disclose evidence. Third, whether seen as a remedy under s. 24(1) of the Charter, or an exercise of the court's own inherent jurisdiction, the imposition of a costs award against the Crown in criminal proceedings will be an unusual order, reserved to situations which may be seen to involve circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution, or if not involving prosecutorial misconduct, conduct by the police or systemic failures so extraordinary as to be virtually unique in character" - See paragraphs 41 to 68.

Criminal Law - Topic 4591

Procedure - Costs - Against the Crown - Taylor successfully applied for an order of certiorari setting aside a search warrant - The information sworn to obtain contained incomplete and misleading information presented by a Canada Revenue Agency officer - A chambers judge awarded costs against the Crown - Under s. 4(2) of the Canada Revenue Agency Act, the Canada Revenue Agency was "for all purposes an agent of the Crown" - The Nova Scotia Court of Appeal held that s. 4(2) was not relevant to whether costs should be awarded against the Crown - Section 4(2) did not displace the requirement at common law that in order to award costs against the Crown in a criminal matter it generally had to be demonstrated that the Crown was either complicit in, or engaged in, egregious or outrageous conduct towards an accused person, a person under investigation, or a third party - Whether by virtue of s. 4(2) the investigator was or was not an agent of the Crown did not change the general legal principle applicable to costs against the Crown in criminal matters - See paragraphs 78 to 89.

Criminal Law - Topic 4593

Procedure - Costs - For oppressive, improper, abusive, frivolous, etc. conduct (incl. trial judge) - [See Civil Rights - Topic 8380.7 ].

Practice - Topic 7350

Costs - Costs in criminal proceedings - Payable by Crown - Conduct of Crown - [See Civil Rights - Topic 8380.7 ].

Practice - Topic 7351

Costs - Costs in criminal proceedings - Payable by Crown - Charter violations - [See Civil Rights - Topic 8380.7 ].

Cases Noticed:

Canadian Broadcasting Corp. v. Newfoundland and Labrador (2006), 254 Nfld. & P.E.I.R. 291; 764 A.P.R. 291; 2006 NLCA 21, refd to. [para. 30].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 35].

R. v. Araujo (A.) et al. (2000), 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 149 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 36].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201, refd to. [para. 36].

R. v. Grouse (D.D.) (2004), 226 N.S.R.(2d) 321; 714 A.P.R. 321 (C.A.), refd to. [para. 36].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 37].

R. v. Torrie, [1967] 3 C.C.C. 303 (Ont. C.A.), refd to. [para. 38].

R. v. Coote, [1970] 3 C.C.C. 248 (Sask. C.A.), refd to. [para. 38].

R. v. LeBlanc (1981), 36 N.B.R.(2d) 675; 94 A.P.R. 675; 64 C.C.C.(2d) 31 (C.A.), refd to. [para. 38].

R. v. White (G.) (1994), 130 N.S.R.(2d) 143; 367 A.P.R. 143; 89 C.C.C.(3d) 336 (C.A.), refd to. [para. 39].

R. v. LeBlanc, [1999] N.S.J. No. 179 (C.A.), refd to. [para. 44].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345, refd to. [para. 46].

R. v. Sweeney (D.J.) (2003), 180 Man.R.(2d) 35; 310 W.A.C. 35; 179 C.C.C.(3d) 225 (C.A.), refd to. [para. 47].

Canada (Attorney General) v. Foster et al. (2006), 217 O.A.C. 173 (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. J.G.C. (2006), 208 O.A.C. 24; 204 C.C.C.(3d) 457 (C.A.), refd to. [para. 52].

Quebec (Attorney General) et al. v. Cronier (1981), 63 C.C.C.(2d) 437 (Que. C.A.), refd to. [para. 52].

Ciarniello v. R. (2006), 215 O.A.C. 29 (C.A.), refd to. [para. 53].

R. v. Pawlowski (M.) (1993), 61 O.A.C. 276; 79 C.C.C.(3d) 353 (C.A.), refd to. [para. 55].

R. v. Regan, [1996] N.S.J. No. 355, refd to. [para. 55].

R. v. Nantes, [1991] N.S.J. No. 72, refd to. [para. 55].

R. v. Morrison, [1997] N.S.J. No. 290, refd to. [para. 55].

O'Neill et al. v. Canada (Attorney General) et al., [2007] O.T.C. Uned. 187 (Sup. Ct.), refd to. [para. 63].

R. v. Cole (D.) (2000), 183 N.S.R.(2d) 263; 568 A.P.R. 263; 2000 NSCA 42, refd to. [para. 67].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 84].

R. v. Wholesale Travel Group Inc. and Chedore (1991), 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 85].

Counsel:

Mark J. Covan, for the appellant;

Duncan Beveridge, Q.C., for the respondent.

This appeal was heard on October 9, 2007, at Halifax, N.S., by Cromwell, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal. Post-hearing supplemental factums were filed by the appellant on October 30, 2007, and by the respondent on December 4, 2007. The following judgment of the Court of Appeal was delivered by Saunders, J.A., on January 18, 2008.