HER MAJESTY THE QUEEN Appellant v. LIEUTENANT J.C. BANTING, 2020 CMAC 2

Date: 20200422 Docket: CMAC-598 Citation: 2020 CMAC 2 CORAM: CHIEF JUSTICE BELL MOSLEY J.A. SCANLAN J.A. BETWEEN: HER MAJESTY THE QUEEN Appellant and LIEUTENANT J.C. BANTING Respondent The motion for costs proceeded on the basis of written submissions from the parties, without personal appearance. Reasons for Order delivered at Ottawa, Ontario, on April 22, 2020. REASONS FOR ORDER BY: THE COURT Date: 20200422 Docket: CMAC-598 Citation: 2020 CMAC 2 CORAM: CHIEF JUSTICE BELL MOSLEY J.A. SCANLAN J.A. BETWEEN: HER MAJESTY THE QUEEN Appellant and LIEUTENANT J.C. BANTING Respondent REASONS FOR ORDER OF THE COURT I.

Background and Position of the Parties [ 1 ] On April 4, 2019, Military Judge Sukstorf acquitted Lieutenant J.C. Banting of one (1) count, which alleged he had conducted himself in a manner prejudicial to good order and discipline contrary to s. 129 of the National Defence Act , R.S.C. 1985, c. N-5 . The Crown based the charge upon comments made by Lieutenant Banting while he was instructing on emergency medical techniques that soldiers might be required to employ in a battlefield environment.

During the course of the instruction, Lieutenant Banting used double entendre nuances, with some degree of sexual innuendo, as mnemonic devices. Military Judge Sukstorf concluded the prosecution had not established a prima facie case. She dismissed the charge without referring the matter to the trier of fact, the General Court Martial

panel. [2] The Crown appealed. In his written submission, Respondent Lieutenant Banting sought dismissal of the appeal with costs. At theclose of the Appellant’s oral argument, this Court advised Lieutenant Banting’s counsel it did not need to hear from him. We dismissedthe Crown appeal.

This Court, neither in its oral reasons given from the Bench, its brief written reasons, nor in its formal judgment,addressed the issue of costs. [3] On November 7, 2019, Lieutenant Banting filed a motion pursuant to Rule 21 of the Court Martial Appeal Court Rules, SOR/86-959("“CMAC Rules”") seeking costs at trial and on appeal, on a solicitor-client basis. The total amount claimed is $61,155.00. TheAppellant filed its response on December 19, 2019.

Both parties declined the opportunity to participate in an oral hearing on the issue ofcosts. [4] Lieutenant Banting contends costs on a solicitor-client basis are appropriate in the circumstances for the following reasons: (1) theAppellant made many false and misleading statements in its oral and written submissions; (2) the ground of appeal was frivolous; (3)there was no evidence to support the Appellant’s position; (4) the Appellant committed an abuse of process; (5) and, finally, theAppellant "“improperly used the legal system in an attempt to achieve a theoretical end, and this has caused prejudice to the Respondent,in terms of cost, time and additional reputational and professional damage”".

Lieutenant Banting contends an abuse of process results inthis case, because, among other considerations, the Appellant requested this Court to infer prejudice, from an "“inferred harm”", visitedupon an "“inferred victim, who never came forward”". [5] The Appellant contends this Court is without jurisdiction to consider the motion given that it is now functus officio, having alreadydecided the appeal and having failed to make an order of costs.

In the alternative, the Appellant acknowledges there were misstatementscontained within both its written and oral submissions, but contends it corrected them at the beginning, and in the course of, the oralhearing. In the event this Court should decide to award costs, the Appellant contends they should be limited to party-and-party costs onthe appeal. [6] For the reasons set out below, we are of the view an award of party-and-party costs on appeal is appropriate in the circumstances. II. Analysis A. Is the Court functus officio? [7] In Chandler v.

Alberta Association of Architects, (SCC), [1989] 2 S.C.R. 848, 62 D.L.R. (4th) 577, the SupremeCourt held that a decision cannot be re-visited simply because a court has changed its mind, made an error within its jurisdiction orbecause there has been a change of circumstances. It can only do so if authorized by statute, there has been a slip in preparing thedecision, or there has been an error in expressing the manifest intention of the court. Chandler instructs as follows: The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appealin In re St.

Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the JudicatureActs to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, andwas subject to two exceptions: (1) where there had been a slip in drawing it up, and, (2) where there was an error inexpressing the manifest intention of the court. See Paper Machinery Ltd. v. J. O. Ross Engineering Corp., (SCC), [1934] S.C.R. 186. (At p. 860.) [8] The principle of functus officio prevents courts from continually hearing applications to change their decisions.

See, Ontario (EnergyBoard) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147, at para. 65; Doucet-Boudreau v. Nova Scotia (Minister ofEducation), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 79; Reekie v. Messervey, (BC CA), [1990] 1 S.C.R. 219, 66D.L.R. (4th) 765, at pp. 222-23. [9] This Court is not functus officio on the issue of costs. Neither party addressed that issue at the oral hearing. Neither the reasons fromthe Bench, the brief written reasons, nor the Court’s formal judgment make any reference to costs. Furthermore, Rule 21 of the CMACRules permits the bringing of such a motion.

In the absence of a decision on the matter, we consider the motion for costs to be properlybefore the Court. We note that a similar situation arose before the Supreme Court in R. v. Trask, (SCC), [1987] 2 S.C.R.304, 37 C.C.C. (3d) 92. In Trask, the order granting the accused leave to appeal provided that ""costs of this application are to bedecided upon the hearing of the appeal"". On the appellant's motion under Rule 51 of the Rules of the Supreme Court of Canada,SOR/83-74, the Court ordered a re-hearing, limited to the question of costs.

No issue was raised as to whether the Court was functusofficio because it had failed to address the question on the "“hearing of the appeal”". B. This Court’s jurisprudence on the issue of costs to a successful accused appellantor respondent [10] This Court has not spoken consistently regarding the circumstances in which costs will be awarded. In some cases, costs seem tohave been awarded routinely, while in others, special circumstances were required before making such an award. [11] In R. v.

Walsh (1993), CMAC-351, in a decision allowing an appeal from sentence, the Court simply allowed the appeal with costs.The Court undertook no analysis to determine whether there existed special or other circumstances to justify the award. In R. v. Boivin(1998), CMAC-410, the Court awarded "“costs to be taxed in accordance with these reasons”". While there is no analysis as to why costswere awarded, it can be inferred that the award resulted from an unreasonable verdict at trial following the misapplication of the hearsayrule. A successful appeal on such a basis is not, in our view, extraordinary. In R. v.

Scott, 2004 CMAC 2, although the appeal involved aCharter violation based upon religion, it does not appear that violation resulted in the cost award. The unanimous Court simply stated

"“since his appeal succeeds, he should have his costs on the appeal […]”". Finally, in R. v. Baptista, 2006 CMAC 1, the Court allowedan appeal from sentence. The Court undertook no analysis regarding costs. However, the concluding paragraph reads "“[t]he appellant isentitled to costs to be assessed under the Federal Court Tariff”". [12] In Walsh, Boivin, Scott, and Baptista, this Court appears to have routinely awarded costs to the successful accused appellant. [13] In contrast, other decisions of this Court required special circumstances before making such an award. In R. v.

Laflamme, 2014CMAC 11, 469 N.R. 200, the Court refused to award costs to the successful accused appellant. The Court stated: An accused is generally not entitled to costs, whether he or she is successful or unsuccessful on the merits of the case. Acourt of appeal will deny costs to an accused who has successfully appealed a criminal matter except where the case of theaccused is remarkable or where there is oppressive or improper conduct on the part of the prosecution. See R. v. M. (C.A.) (SCC), 1996 1 S.C.R. 500, para. 97; R. v. Trask (SCC), 1987 2 S.C.R. 304; Tele-Mobileco. v.

Ontario 2008 1 S.C.R. 305, 2008 SCC 12, para. 55; Attorney General v. Foster (2006), (ON CA),215 C.C.C. (3d) 59 (Ont. C.A.), paras 62-69. (At para. 2.) [14] Similarly, in R. v. Rose, 2005 CMAC 4 (September 28, 2005), the Court refused to award costs to a successful accused appellant.McFadyen, J.A., for the Court, stated: Under Rule 21(2) of the Court Martial Appeal Rules, the Court has discretion to award costs. Although the Rule gives theCourt a broad discretion, the Court does not award costs routinely.

Nothing in the conduct of this prosecution, nor in thecomplexity of the issues raised, takes this case out of the ordinary so as to persuade us to award costs. (At para. 2.) [15] Finally, in R. v. Dominie, 2002 CMAC 8, the Court allowed the accused’s appeal, but only with respect to costs. Following afinding of misconduct on the part of the police and the prosecutor, the Court awarded "“costs in the amount of $3,000.00 because of theegregious conduct of the military police and participation in that conduct by the prosecutor’s efforts in tendering that evidence on a futilevoir dire”" ( at para. 8). C.

Supreme Court guidance on the issue of costs to a successful accused [16] In considering the Supreme Court’s jurisprudence on costs, it is important to consider the different language employed by theSupreme Court Act, R.S.C. 1985, c. S-26 and the CMAC Rules regarding each court’s jurisdiction to award costs.

The differing versionsare set out below: Supreme Court Act CMAC Rules Payment of costs Fees and Costs 47 The Court may, in itsdiscretion, order the payment ofthe costs of the court appealedfrom, of the court of originaljurisdiction, and of the appeal, orany part thereof, whether thejudgment is affirmed, or is variedor reversed. RULE 21

(1) Where a partyother than the Minister isrepresented by counsel, theCourt may direct that all or anyof the counsel’s fees in relationto the appeal or application bepaid, as taxed by an assessmentofficer in accordance with theapplicable tariff of the FederalCourt Rules, 1998.

(2) The Court may direct that allor any of the party’s costs in theCourt in relation to the appeal orapplication be paid, as taxed byan assessment officer inaccordance with the applicabletariff of the Federal Court Rules,1998.

Loi sur la Cour suprême Règles de la Cour d’appel de lacour martiale Paiement des frais Honoraires et dépens

47 La Cour a le pouvoirdiscrétionnaire d’ordonner lepaiement des dépens desjuridictions inférieures, ycompris du tribunal de premièreinstance, ainsi que des fraisd’appel, en tout ou en partie,quelle que soit sa décision finalesur le fond. RÈGLE 21

(1) Si une partie,autre que le ministre, estreprésentée par avocat, la Courpeut ordonner que soient payéstout ou

partie des honoraires del’avocat relatifs à l’appel ou à lademande taxés par l’officiertaxateur selon le tarif applicabledes Règles de la Cour fédérale(1998).

(2) La Cour peut ordonner quesoient payés tout ou

partie desdépens d’une

partie relatifs àl’appel ou à la demande taxés parl’officier taxateur selon le tarifapplicable des Règles de la Courfédérale (1998). [17] It is common ground that words in a statute are to be given their plain meaning unless the context requires otherwise: see,Ruth Sullivan, Statutory

Interpretation, 3rd ed (Toronto: Irwin Law, 2016) at pp. 59-60. Nothing in the context of the CMAC Ruleswould suggest the Court apply other than a plain meaning approach to

interpretation in this case. In fact, the context supports a plainmeaning

interpretation. The Supreme Court Act demonstrates that it is clothed with jurisdiction to award costs "“of the court appealedfrom, of the court of original jurisdiction, and of the appeal”". In contrast, no such jurisdiction appears to exist in this Court. Based uponboth context and a plain reading of Rule 21, costs are limited to counsel fees in relation to the appeal or application. I also note that inthis case, no costs were sought at trial, nor were any awarded. [18] Abuse of process constitutes a basis upon which a court may make an award of costs in a civil matter.

Abuse of process is definedby the Supreme Court of Canada as the bringing of proceedings that are unfair to the point they are "“contrary to the interest of justice”"or could be considered as "“oppressive treatment”". See Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at para.39; Gonzalez v. Gonzalez, 2016 BCCA 376, 91 B.C.L.R. (5th) 221, at para. 18. In Behn, Justice LeBel states the following: As can be seen from the case law, the administration of justice and fairness are at the heart of the doctrine of abuse ofprocess.

In Canam Enterprises and in C.U.P.E., the doctrine was used to preclude relitigation of an issue in circumstances inwhich the requirements for issue estoppel were not met. But it is not limited to preventing relitigation. Forexample, in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, the Court heldthat an unreasonable delay that causes serious prejudice could amount to an abuse of process (paras. 101-21).

The doctrine ofabuse of process is flexible, and it exists to ensure that the administration of justice is not brought into disrepute. (At para.41.) [19] Similarly, the Supreme Court has held that costs may be awarded in criminal matters, regardless of whether the accused issuccessful on the appeal. In conducting its analysis, the Court is to consider whether there is anything remarkable about the case orwhether the Crown conducted itself in an oppressive or improper manner. In R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R.500, 105 C.C.C. (3d) 327, at para. 97, Lamer, CJC stated as follows: Finally, the respondent has filed a request for costs on a solicitor-client basis under this Court's discretionary authority unders. 47 of the Supreme Court Act, R.S.C. 1985, c. S-26. We have previously acknowledged that this discretionary powerextends to making an order for costs in a criminal case, including both

summary conviction matters (R. v. Trask, (SCC), [1987] 2 S.C.R. 304 (costs denied)) and indictable matters (R. v. Olan, No. 14000, October 11, 1977(costs allowed)). But the prevailing convention of criminal practice is that whether the criminal defendant is successful orunsuccessful on the merits of the case, he or she is generally not entitled to costs. See Berry v. British TransportCommission (1961), [1962] 1 Q.B. 306 (C.A.), at p. 326, per Devlin L.C.J. The Criminal Code codifies this convention as amatter of appellate practice before provincial courts of appeal in cases involving indictable offences. See s. 683(3) ofthe Code, but see. s. 839(3) regarding

summary conviction cases. Consistent with this established convention, in Trask, wedenied costs under s. 47 to a criminal defendant following a successful appeal of a

summary conviction matter, as there wasnothing "remarkable" about the defendant's case, nor was there any "oppressive or improper conduct" alleged against theCrown (At pp. 307-308.) [20] In R. v. Curragh Inc., (SCC), [1997] 1 S.C.R. 537, 113 C.C.C. (3d) 481, at paras. 13-14, the Court awarded coststo the accused, despite the dismissal of his appeal, in order to compensate him for the financial burden of his legal fees. While the Courtfound that such costs should ordinarily be borne by those charged with criminal offences, the unique circumstances of that case merited acosts award.

The delays and much of the legal costs arose from systemic problems that were, to a large extent, caused by the words andactions of the trial judge. The trial judge’s conduct resulted in a reasonable apprehension of bias over which the accused had no control.See also, R. v. Olan, SCC Case No. 14000, October 11, 1977 [unreported] where the Court awarded costs against the Crown in an appealarising from an indictable offence. [21] In addition, costs may be awarded in a criminal matter, in favour of an accused, where the issue raised, either by the Crown or theaccused, is one important to the legal system as a whole.

The Court has held that costs of litigating such an issue should not be borne byan individual accused or defendant. This, even if the accused is unsuccessful on appeal. See, R. v. Osborn, (SCC),[1971] S.C.R. 184; Trask, at para. 7; R. v. Caron, 2015 SCC 56, [2015] 3 S.C.R. 511, at paras. 110-114. D. Provincial Courts of Appeal guidance on the issue of costs to a successful accused

[22] Provincial courts of appeal are bound by costs provisions in the Criminal Code, R.S.C. 1985, c. C-46 [Code]. Those appellatecourts are precluded from awarding costs in indictable offence appeals by application of subsection 683(3) of the Code. However, theymay award costs in

summary conviction appeals pursuant to

section 826 and subsection 839(3): Procedure on Appeal Procédure sur appel Costs Frais 826 Where an appeal is heardand determined or is abandonedor is dismissed for want ofprosecution, the appeal courtmay make any order with respectto costs that it considers just andreasonable. 826 Lorsqu’un appel est entenduet décidé ou est abandonné ouest rejeté faute de poursuite, lacour d’appel peut rendre,relativement aux frais, touteordonnance qu’elle estime justeet raisonnable. […] […] Appeals to Court of Appeal Pourvois devant la courd’appel Costs Frais 839

(3) Notwithstandingsubsection (2), the court ofappeal may make any order withrespect to costs that it considersproper in relation to an appealunder this section. 839

(3) Nonobstant leparagraphe (2), la cour d’appelpeut rendre toute ordonnance,quant aux frais, qu’elle estimeappropriée relativement à unappel prévu par le présent article. [23] Provincial appellate jurisprudence in this regard largely mirrors that of the Supreme Court. Although the basis for awarding costs isnot exhaustive, they have generally been awarded in one of two (2) circumstances. First, where the conduct of the prosecution meritssanction, such as when it acts in a manner that is a marked and unacceptable departure from the reasonable standards expected of it, or, itacts in bad faith.

In such a case, the costs are punitive (Laval (Ville) v. Gagnon (2000), (QC CA), 147 C.C.C. (3d)184, at para. 19 (Que. C.A.)). Second, where other exceptional circumstances exist such that fairness requires that the individual litigantnot carry the financial burden, such as where the Crown pursues a test case. Generally, costs in this category are awarded where there ishigh public interest in the question to be resolved, little or no personal significance to the party awarded costs, and an element of fairnessfavouring the party awarded costs (R. v.

Haryett & Company (Representing the Interests of Legal Aid Alberta), 2019 ABCA 369, 50M.V.R. (7th) 177, at paras. 11 and 17; R. v. Garcia (2005), (ON CA), 194 C.C.C. (3d) 361, 29 C.R. (6th) 127, at para.26 (Ont. C.A.)). In this second category, the costs are considered compensatory (Gagnon, at para. 19). In general, see, Haryett &Company, at paras. 7, 11-13, 17; R. v. Yang, 2017 BCCA 349, at para. 12, leave to appeal to S.C.C. refused, 37091 (19 April 2018); R. v.Munkonda, 2015 ONCA 309, 324 C.C.C. (3d) 9, at paras. 142-144; Garcia, at para. 13; Gagnon, at para. 23.

Regardless, these two (2)categories cannot be considered exhaustive. In both Ontario and British Columbia, courts of appeal have been reluctant to set limits as tothe scope of circumstances which may result in an award of costs in the criminal law context (Haryett & Company, at para. 12 citingFrance (Republic) v. Foster (2006), (ON CA), 215 C.C.C. (3d) 59, 274 D.L.R. (4th) 253, at paras. 66 and 69 (Ont.C.A.); Munkonda, at para. 142 citing R. v. King (1986), (BC CA), 26 C.C.C. (3d) 349 (B.C.C.A.)). E.

Application of the jurisprudence to the case at bar [24] We are satisfied that costs should not be routinely awarded, either at trial or on appeal, in favour of a successful accused. Theremust be some evidence assessed by the military judge or this Court, as the case may be, which creates special circumstances that justifyan award of costs.

While the list is not closed, special circumstances include the following: Charter breaches; police or Crownmisconduct; the institution of a frivolous or vexatious prosecution or appeal; unreasonable delay, all of which may, otherwise bedescribed, as oppressive conduct by the Crown. Special circumstances may also include the pursuit of a "“test case”" where the Crown,even in good faith, is unsuccessful in its efforts to settle an area of law that will have major implications across the whole of the militaryjustice system.

In the case of the latter example, it would be unfair to expect a successful individual litigant to bear all of his or her costs. [25] We now turn to the facts we consider relevant to this motion. First, the Appellant admits it made misstatements both in its writtenand oral submissions before this Court. However, the Appellant acknowledged all errors, either at the outset of the hearing or in thecourse of responding to questions from the Court. The Respondent accused was never seriously placed in jeopardy by thosemisstatements.

The proof lay in the fact the Court dismissed the appeal without the necessity of calling upon Respondent’s counsel.Second, both at trial and on appeal, there were clearly weaknesses in the approach taken by the Appellant. The invitation to applyinferential reasoning in circumstances where it was clearly inappropriate is but one example.

However, unsuccessful advocacy, providedthere is no evidence of bad faith, should not form the basis of a costs award against the Crown. [26] In the circumstances, there is no evidence of a Charter violation, police or Crown misconduct, nor is there any evidence ofunreasonable delay on the part of the Crown. [27] We now turn to whether the prosecution of Lieutenant Banting, and the subsequent appeal brought by the Crown, amount tofrivolous or vexatious conduct. In considering this issue, the Court is mindful of its decisions in R. v. Golzari, 2017 CMAC 3 andCanada v. Bannister, 2019 CMAC 2.

Those decisions spawned discussion among members of the military bar and military judgesregarding the parameters of the offence of conduct prejudicial to good order and discipline and disgraceful conduct. Prosecution

authorities found themselves attempting to assess and define the parameters of Golzari and Bannister against the backdrop of OperationHonour, at the expense of Lieutenant Banting. That does not lead us to conclude the proceeding was frivolous or vexatious. [28] That said, we do wish to state categorically that while the prosecution of Lieutenant Banting may not have risen to frivolous orvexatious conduct, we do consider the prosecution and the subsequent appeal, to have been questionable.

It is apparent that militarycommanders and the prosecution intended to use Lieutenant Banting’s circumstances to test the limits of this Court’s reasoning inGolzari and Bannister. Those same commanders and the prosecution chose to use Lieutenant Banting’s circumstances to test the reach ofOperation Honour within the military justice context.

They chose to pursue the case against Lieutenant Banting in circumstances where acourt would eventually conclude there existed no prima facie case and where the Canadian Armed Forces training manual authorized theacronym F.U.C.K. (Fight the fight; Uncontrolled bleeding; Communicate; Keep moving) as a mnemonic device. Based upon thesubjective sensibilities of at least one of the perceived "“complainants”" in this case, that acronym would seem more offensive than anyof the double entendres employed by Lieutenant Banting. The test case failed miserably.

Only one question arises: should LieutenantBanting’s costs be borne exclusively by him? We conclude they should not. The successful accused in this case should not bear the costsof a test case with major implications across the whole of the military justice system. [29] The remaining question is whether to award costs on a party-and-party basis or on a solicitor-client basis. Party-and-party costs areintended to produce a partial indemnity, whereas costs on a solicitor-client scale are intended to result in full indemnity to the beneficiaryof the award.

Solicitor-client costs are generally awarded on those very rare occasions where there has been reprehensible, scandalous oroutrageous conduct on the part of one of the parties (Young v. Young, (SCC), [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193, atp. 134; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 26; Mackin v. New Brunswick (Minister ofFinance); Rice v.

New Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405, at para. 86; Caron, at paras. 112-113). [30] Although the Appellant’s conduct was negligent at best, we are satisfied it does not reach levels of reprehensibility, scandal oroutrageousness to justify an award of solicitor-client costs. We are of the view that a significant award of party-and-party costs, whichwill partially compensate Lieutenant Banting, is appropriate in this test case. We are satisfied that an award of $10,000 of costs onappeal, all inclusive of disbursements, is reasonable in the circumstances. “B. Richard Bell” Chief Justice “Richard G.

Mosley” J.A. “J.E. Scanlan” J.A. COURT MARTIAL APPEAL COURT OF CANADA NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: CMAC-598 STYLE OF CAUSE: HER MAJESTY THE QUEEN v. LIEUTENANT J.C.BANTING DEALT WITH IN WRITING WITHOUT APPEARANCE OF THE PARTIESREASONS FOR ORDER OF THE COURT: CHIEFJUSTICEBELL MOSLEY J.A. SCANLANJ.A. DATED: april 22, 2020 IN WRITING: Major Stephan Poitras For The Appellant

Mr. Joshua M. Juneau For The Respondent SOLICITORS OF RECORD : Canadian Military Prosecution Service Ottawa, Ontario For The Appellant Michel Drapeau Law Office Ottawa, Ontario For The Respondent