Jurisdiction to Award Costs
A provincial court hearing a CDSA forfeiture application has an implied power to award costs in appropriate circumstances. That power is derived from the authority, possessed by every court of law, to control its own process. It is also implied by the forfeiture provisions of the CDSA: R v Fercan Developments, 2016 ONCA 269 at paras 49-55
A superior court has the ability to award costs pursuant to its power to control its own process. That power is part of a superior court’s inherent jurisdiction. A superior court can order parties to pay costs for frivolous or abusive proceedings or in cases involving misconduct: Fercan Developments at para 50
Courts should be reluctant to interpret legislation in a way that would require bifurcation of proceedings, requiring litigants to seek a costs remedy in superior court for a proceeding that occurred in the provincial court: Fercan Developments at para 58
General Principles
There are three circumstances where costs may be awarded against the Crown:
Costs as a Charter Remedy: click here
Costs for Crown Misconduct
Costs for Bystanders
The differences between an accused and a bystander may justify a lower threshold for Crown misconduct leading to costs:
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First there is a significant access to justice issue as a bystander may incur significant legal costs to enforce his or her Charter rights.
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Second a bystander is in a more vulnerable position than an accused person since the rules of criminal procedure, which afford accused persons procedural protections, are not available to bystanders.
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Third, the rationale for limiting costs awards in favour of accused persons to cases of Crown misconduct does not apply with the same force to bystanders: R v Martin, 2016 ONCA 840 at para 51; see also Fercan Developments
Costs outside the Charter Context
Test
A court can award costs when there has been a marked and unacceptable departure from the reasonable standards expected of the prosecution: R v Fercan Developments, 2016 ONCA 269 at para 71
Appeal of Costs Award
Section 676.1 of the Criminal Code provides that any party who is ordered to pay costs may appeal the order or the quantum with leave.