R. v. Makaruk, 2011 ONCJ 214

Citation: R. v. Makaruk , 2011 ONCJ 214 ONTARIO COURT OF JUSTICE TORONTO REGION In the matter of the Provincial Offences Act , R.S.O. 1990, c.P.33 Her Majesty the Queen versus James Makaruk Before: Her Worship Mary A. Ross Hendriks, Justice of the Peace REASONS FOR JUDGMENT ON MOTION FOR COSTS Prosecutor: Ms. I. Stamicar for the City of Toronto Defendant: Mr. J. Makaruk for himself Hearing Date: January 31, 2011 Judgment Delivered: April 21, 2011

INTRODUCTION: [ 1 ] The defendant, James W. Makaruk, was charged with “fail to yield” under section 136(1) (

b) of the Highway Traffic Act , R.S.O. 1990, c. H. 8 (the “ HTA ”), on January 26, 2008. He requested a trial by filing a Notice of Intention to Appear on February 20, 2008. He was sent a Notice of Trial, dated April 21, 2008, which provided for a trial date of November 19, 2008. [ 2 ] A number of delays and mishaps occurred in the scheduling of this matter, mostly because of institutional error and one adjournment request by Mr. Makaruk. He brought a motion pursuant to

section 11(

b) of the Canadian Charter of Rights and Freedoms (the “ Charter ”) to have the matter stayed for delay. [ 3 ] On January 31, 2011, prior to the hearing of this motion and commencement of trial, the Prosecutor withdrew the charge, because she was unable to locate key witnesses, one of whom lives in Toronto, and the other in Nova Scotia. [ 4 ] The defendant had previously put the Prosecutor on notice on January 11, 2011 that if she did not withdraw the charge, he would be relying on the Charter and seeking costs.

Since the matter was put over repeatedly to January 31, 2011, despite the prosecutor's withdrawal of the case, he is seeking costs on an “substantial indemnity basis” in his motion materials. On January 31, 2011, he had previously asked the court for $2000 in costs, to compensate him for his lost income caused by these delays.

BACKGROUND: [ 5 ] Based on the written submissions filed with the court in conjunction with this motion costs, the following background information has been gleaned regarding the timing of key events that are relevant to the issue of delay. [ 6 ] When the matter was first up for trial on November 19, 2008, because the charge involved an accident, the justice of peace presiding adjourned the matter to June 12, 2009 for a half-day trial, and indicated that a pre-trial should be held, which is the customary practice. [ 7 ] On April 9, 2009, the defendant sought an adjournment of the June 12, 2009 trial date.

This defence request was granted and the matter was adjourned to January 15, 2010. [ 8 ] The defendant submits in his written materials that he contacted the Prosecutor's Office and requested a pre-trial sometime during the fall of 2009, but he states that his request was turned down because he was unwilling to plead guilty. The materials filed by the Prosecutor did not address this particular point.

Given that the justice of the peace presiding on November 19, 2008 had previously directed that a pre-trial be held, I give little weight to this particular submission. [ 9 ] On the date of trial, January 15, 2010, the Prosecutor sought an adjournment in order to conduct a pre-trial. Mr. Makaruk asserts that the court room had not been reserved for the half-day special trial returnable on January 15, 2010. He further submits that he was ready

to proceed that day, and that he had taken a day off of work to do so, which I accept. The pre-trial date was set for March 16, 2010, and the matter was put over to set date court for March 25, 2010. On March 16, 2010, because of another administrative error, the matter was not on the JPT list. [ 10 ] The pre-trial was re-scheduled for June 4, 2010 with a set date of June 11, 2010. On June 11, 2010, a new trial was scheduled for January 31, 2011. [ 11 ] On March 25, 2010, Mr. Makaruk did not attend the set date court, based on his understanding that this date had been vacated.

At that time, an ex parte trial was scheduled for August 9, 2010. On August 9, 2010, the justice of the peace presiding convicted him on a “deemed not to dispute” basis. [ 12 ] On September 8, 2010, the defendant received a letter that he had been convicted of this offence on August 9, 2010. He emailed the Prosecutor, who replied to him by email on September 13, 2010, advising that the August date had been chosen by a different prosecutor and set as a trial date.

She acknowledged in her email reply that an error had occurred and said, “it is ultimately my office's responsibility.” In order to correct this mistake, she appealed the matter on the defendant's behalf, and made arrangements to keep the January 31, 2011 trial date. [ 13 ] On October 12, 2010, the defendant emailed the Prosecutor and advised her that once his conviction had been overturned, if she requested a trial, he would bring an application under

section 11(

b) of the Charter based on “systemic delay resulting in prejudice to me.” He asked her to consider the matter and reply to him. He did not, at this time, advise that he would be seeking costs if she declined to withdraw the matter. [ 14 ] The defendant states in his submissions that he appeared in court on October 28, 2010 to speak to the August 9, 2010 conviction, which he states cost him another half of day of work. There is no reference to this appearance in the Prosecutor's submissions.

While it is not clear to this court where he attended, or exactly what transpired, nevertheless, I accept his submission. [ 15 ] The Prosecutor submits, in paragraphs 12-14 of her written submissions (reproduced below, verbatim ), that the following then occurred: On November 22, 2010, the Prosecutor appealed the conviction on behalf of Mr. Makaruk in order to ensure that he would be dealt with fairly. The Prosecution had no obligation to appeal this matter on Mr. Makaruk's behalf.

On the appeal date, the conviction was set aside and a new trial date was ordered for January 31, 2011 (which is exactly the same date that the matter had previously been scheduled to proceed on by way of a half-day special). On November 22, 2010, the Prosecutor immediately called the Prosecution witness who resided in Toronto and left a voicemail on his cell phone as the subpoena that was sent to the witness earlier was returned. At this point in time, the Prosecutor had every reason to believe that the witness would attend the January 31, 2011 trial date. On January 31, 2011, Mr.

Makaruk and the Prosecutor attended the trial. Neither of the Prosecution witnesses attended. The Prosecutor asked for a brief recess to attempt to contact the civilian witness who was required to attend in order to prove the charge against Mr. Makaruk. The Prosecutor called the witness, however the cell phone number was no longer in service. Once the proceedings were resumed, the Prosecutor withdrew the charge due to the non-attendance of the witness. Mr.

Makaruk then made a verbal motion for costs to be issued against the Prosecution and the matter was adjourned to April 21, 2011 for written submissions to be properly served on all parties involved (Prosecutor, Mr.

Makaruk and the Court) and for judgment on the motion for costs. [emphasis of Prosecutor] [ 16 ] As indicated in one of the defendant's exhibits, on January 11, 2011, the defendant emailed the Prosecutor and again asked her to withdraw the charge against him, for the following reasons: (1) waste of court time; (2) waste of efforts by both sides to prepare their cases, and (3) effort required by the witnesses to prepare for and attend court. Again, he invited the prosecutor to speak to him about this request.

For the first time, he advised that “should you proceed to trial I will be seeking full costs on a substantial indemnity basis.” [ 17 ] On January 28, 2011, the defendant emailed the prosecutor the particulars of his

section 11 (

b) motion for delay. There is no

indication before the court that his

section 11 (

b) motion had been served and filed on all necessary parties. [ 18 ] On January 31, 2011, after a short recess and prior to the commencement of the

section 11 (

b) motion, the Prosecutor advised this court that her two witnesses had both failed to attend court, and that a phone call to one witness, who resides in Nova Scotia, indicated that his address had changed.

As a result, she withdrew the charge against the defendant. [ 19 ] The defendant is seeking costs, as stated orally in court on January 31, 2011, and the Prosecutor confirmed on the record that he had advised her of this position on January 11, 2011. [ 20 ] Because this is a relatively unusual issue that came about in court rather unexpectedly, I was candid that I did not know the answer immediately and that legal research would be required in order to achieve a fair result. Each party was directed to file written submissions prior to the return of the matter for judgment on the motion for costs.

The defendant's materials were well-prepared and filed at Old City Hall sometime in early March, 2011, and received by the court shortly thereafter. The City's materials were also well- prepared and filed at Old City Hall on March 18, 2011. The defendant's Response was received in late March, 2011 and filed at Old City Hall, as directed. All submissions and jurisprudence have been carefully considered, and I am genuinely grateful that the parties took the time and effort to prepare their written submissions, and file them as directed. ISSUES: [ 21 ] The following issues emerge from this motion for costs:

(1) Does a provincial court justice acting under the Ontario Provincial Offences Act , R.S.O. 1990, c.P. 33 (“ POA ”) have the power to order costs against the Crown for failure to comply with the Charter ? (1)

(2) If the answer to the first question is “yes,” does the withdrawal of the charge change the jurisdiction of the court to hold a freestanding hearing on the issue of costs? DECISION: [ 22 ] A provincial court justice acting under the POA does have the power to order costs against the Crown for failure to comply with the Charter . However, absent abuse or some other flagrant impropriety on the part of the Crown in withdrawing the charge, the court has no freestanding jurisdiction to hold a hearing on the issue of costs arising from the Charter breach alleged by the defendant once the matter has been withdrawn. ANALYSIS: [ 23 ] The defendant was charged under section 136(1) (

b) of the HTA with “fail to yield.” It is a relatively minor offence that falls under

Part I of the POA . The maximum fine for any

Part I offence is $1000.

[24] The relevant provisions of the HTA are reproduced below: Stop at through highway 136.

(1) Every driver or street car operator approaching a stop sign at an intersection, (

a) shall stop his or her vehicle or street car at a marked stop line or, if none, then immediately before entering the nearest crosswalk or,if none, the immediately before entering the intersection; and (

b) shall yield the right of way to traffic in the intersection or approaching the intersection on another highway so closely that to proceedwould constitute an immediate hazard and, having so yielded the right of way, may proceed. R.S.O. 1990, c.H.8, s.136(1). Acquiring right of way (2)Every driver or street car operator approaching, on another highway, an intersection referred to in subsection (1), shall yield the rightof way to every driver or operator who has complied with the requirements of subsection (1). R.S.O. 1990, c.H.8, s.136(2).

The Application of the Charter: [25] The Charter applies to both regulatory offences and to charges under the Criminal Code. As Justice Libman notes in his work,Libman on Regulatory Offences in Canada, Earlscourt Legal Press Inc., Update 15, at page 10-131, the Supreme Court of Canada held inR. v. C.I.P. Inc., (SCC), [1992] 1 S.C.R. 843, that “the Charter does not distinguish between types of offences.” Thus,the fact that this offence is a relatively minor matter does not negate the potential operation of the Charter to any legal issues before thecourt.

The Jurisdiction of a Justice of the Peace Sitting in POA Court to Consider the Charter Generally: [26] It is settled law that a justice of the peace presiding in a POA court is a “court of competent jurisdiction” within the meaning ofsection 24 of the Charter to provide “such remedy as the court considers appropriate and just under the circumstances” where agovernment action is inconsistent with the Charter. A “court of competent jurisdiction” is one that possesses: (1) jurisdiction over theperson; (2) jurisdiction over the subject matter; and (3) jurisdiction to grant the remedy.

All three attributes must be present for a courtor tribunal to grant relief under

section 24 of the Charter. See: Mills v. The Queen, (S.C.C.), [1986] 1 S.C.R. 863; Weber v. Ontario Hydro, (S.C.C.), [1995] 2S.C.R. 929; Mooring v. Canada (National Parole Board), (S.C.C.), [1996] 1 S.C.R. 75. The Issue of Unreasonable Delay: [27]

Section 11(

b) of the Charter applies to individuals who have been charged with an offence and provides them with the right “to betried within a reasonable time.” Motions under

section 11(

b) may be brought for regulatory offences as well as for criminal offences. AsJustice Libman notes in his work, supra, at page 10-131:

The accused must establish the alleged s.11(

b) violation on a balance of probabilities. Whether or not delay is unreasonable is notsimply a function of the passage of time. A court must consider time and several other constitutionally relevant factors, as identified bythe Supreme Court of Canada in the Askov and Morin and Sharma decisions. [28] The motion brought by the defendant under

section 11(

b) of the Charter was never heard because the prosecutor withdrew thecharge prior to the commencement of the motion. Thus, it is not necessary to determine whether the

section 11(

b) motion had beenproperly served and filed. I am satisfied that his motion for costs has been properly served and filed, and no submissions to the contraryhave been filed by the Prosecutor. Thus, this matter is properly before me. [29] Before considering the merits of the motion for costs, the court must examine the legal issues of whether it has the jurisdiction toorder costs on a POA matter, and if so, if that jurisdiction changed when the prosecutor withdrew the underlying charge.

Can the Court Award Costs on a POA Matter? [30] In R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, the Supreme Court of Canada held, at para. 97, that the courtenjoyed the necessary power under the Ontario POA, as a “court of competent jurisdiction” within the meaning of s.24(1) of the Charter,to grant costs. However, the Supreme Court of Canada was clear that this was a narrow exception, at para. 87, where it held: Neither is there any indication that the Crown will be subjected to such awards unfairly or arbitrarily.

Crown counsel is not held to astandard of perfection, and costs awards will not flow from every failure to disclose in a timely fashion. Rather, the developingjurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from thereasonable standards expected of the prosecution.

I fail to see how the provision of an expedient remedy in such cases, from a trial courtthat is not only competent but also ideally situated to make such an assessment, risks disrupting the existing system of justice. [emphasisadded] [31] Moreover, as the Ontario Court of Appeal held at para. 100 in R. v. Federhof, (ON.C.A.), the question of costson an application under the POA is not governed by the Rules of Civil Procedure but by s.142(5) of the POA, which authorizes the courtto award costs that it considers “just and reasonable”.

It further held, at para. 100, “The rule in proceedings under the Act is thatgenerally no costs are awarded either against the Crown or the defendant.” [32] The Ontario Court of Appeal was clear in explaining the public policy rationale for generally not awarding costs in criminalmatters, as set out in full in R. v. Ciarniello (ON.C.A.), (2006) 211 C.C.C. (3d) 540, set out at para. 31-33, verbatim: The Crown Misconduct Rule for Costs in Criminal Cases: As I have noted, for the purposes of this appeal, no issue is taken with the traditional rule, expressed in R. v.

M. (C.A.) (1996), (SCC), 105 C.C.C. (3d) 327 (S.C.C.), at para. 97 “that whether the criminal defendant is successful or unsuccessful on themerits of the case, he or she is generally not entitled to costs”. It is only where the accused can show “a marked and unacceptabledeparture from the reasonable standards expected of the prosecution” that a costs order will be made: R. v. 974649 Ontario Inc. (2001),2001 SCC 81 , 159 C.C.C. (3d) 321 (S.C.C.) at para. 87. Routine cost awards in favour of the winning party are a feature of civil, not criminal proceedings. Costs awards in civil litigation serveseveral purposes.

Costs in civil cases are awarded on the compensatory principle that it is just to allow the successful civil litigant atleast partial indemnity for the costs of the action. Costs sanctions are also an important tool at the disposal of civil courts to controlproceedings and to discourage unreasonable or inappropriate behaviour. Especially when fortified with offer to settle rules that penalize

unreasonable litigation, the threat of an adverse costs award serves to discourage unnecessary or frivolous litigation and encouragesparties to settle their disputes. Different considerations apply to criminal proceedings. Criminal proceedings are brought in the public interest, not by one party tovindicate his or her private interests as against another. As Devlin, L.J explained in Berry v. British Transport, [1962] 1 Q.B. 306 (C.A.)at p.327: “A plaintiff brings an action for his own ends and to benefit himself; it is therefore just that if he loses he should pay the costs.

A prosecutor brings proceedings in the public interest, and so should be treated more tenderly.” Costs are not usually deployed incriminal law to influence the conduct of litigation. The threat of conviction and loss of liberty provides an adequate incentive to theaccused to defend the case. As the crown acts in the public interest when conducting criminal prosecution, it is said that its discretionshould not be influenced or fettered by a threat of a costs award. As explained by McFayden J.A in R. v. Robinson (1999), 1999 ABCA367 , 142 C.C.C. (3d) 303 (Alta.

C.A.) at para. 29: The reasons for limiting costs are that the Crown is not an ordinary litigant, does not win or lose criminal cases, and conductsprosecutions and makes decisions respecting prosecutions in the public interest. In the absence of proof of misconduct, an award ofcosts against the Crown would be a harsh penalty for Crown officer carrying out such public duties. [33] At para. 45 in R.v.

Ciarniello, supra, Justice Sharpe also considered what he termed “hardball” by the Crown, which fell short ofCrown misconduct, and determined that it was appropriate and just that the Crown pay a portion of the appellant's bill of costs.

Inparticular, the Ontario Crown in that case should have concluded that the search warrant would likely be quashed based on a previousfinding of a judge from British Columbia. [34] Turning back to the case before this court, while I find that there have been several procedural irregularities attributable toinstitutional delay and error (e.g. court rooms that were not booked, and a conviction rendered in error) that led to unnecessary delay andterrible stress and frustration to the defendant, including disruption to his work, there was no Crown misconduct on the part of theprosecutors, nor do I find that they played “hardball”.

In fact, when the final prosecutor became aware of the conviction, she brought amotion on the defendant's behalf to correct this error. As a matter of fairness, it would be unjust for a POA court to punish a prosecutor,or for that matter, a defendant, with a costs sanction when one of the witnesses moves close to the trial date and fails to provide his or hernew contact information, even if the other witness is in Nova Scotia and was unlikely to appear. [35] While the court has a narrow jurisdiction to award costs on a POA matter, I decline to do so for the reasons noted.

Does the Withdrawal of the Charge Change the Jurisdiction of the Court? [36] The withdrawal of the charge by the prosecutor removed the jurisdiction of the court to consider the issue of costs, absent abuse orsome other flagrant impropriety, see: R. v. Fach, (ON.C.A.). [37] The Supreme Court of Canada clearly articulated the core elements of deference to prosecutorial discretion in Krieger v.

LawSociety of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 46, which include the discretion to withdraw proceedings, as follows: Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (

a) the discretion whetherto bring the prosecution of a charge laid by police; (

b) the discretion to enter a stay of proceedings in either a private or publicprosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss.579 and 579.1; (

c) the discretion to accept a guilty plea to a lessercharge; (

d) the discretion to withdraw from criminal proceedings altogether: R.v. Osborne (1975), (NB CA), 25C.C.C. (2d) 405 (N.B.C.A.); and (

e) the discretion to take control of a private prosecution: R.v. Osiowy, (1989), (SK CA), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, theseare the core of the delegated sovereign authority peculiar to the office of the Attorney General.

[ 38 ] It is clear from Krieger , supra , at para. 49 , that prosecutorial discretion will not be reviewable except in cases of “flagrant impropriety” or circumstances of “malicious prosecution.” [ 39 ] In this proceeding, once the prosecutor withdrew the charge, the role of this court ceased. There was no abuse or flagrant impropriety on the part of the prosecutor in making the decision to withdraw the charge, and as such, I have no jurisdiction to hold a freestanding hearing on the issue of costs arising from the alleged breach of the defendant's Charter right to a trial without reasonable delay. See: R. v.

Fach , supra. ORDER: [ 40 ] For the reasons given, the motion for costs is hereby dismissed. Dated the 21 st day of April, 2011, at the City of Toronto. ______________________________ Mary Ross Hendriks, J.P.